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VOLUME 29, NUMBER I,

WINTER

1988

State Responsibility and the Unmaking of International LawPhilip 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 longterm 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 Commission 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 governing statute on Nov. 21, 1947 by G.A. Res. 174(11), U.N. Doc. A/519, at adopted its 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 Commission, art. 1, id. 105, reprintedin42 AM. J. INT'L L. SUpP. 1, 2 (1948). The Commission at 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 Development and Codifirationof InternationalLaw, 42 AM. J. INT'L L. 66 (1948).

HarvardInternationalLaw Journal / Vol. 29 From an evolutionary point of view it was astute of governments to allow the Commission to work on state responsibility. To an innocent eye this might have seemed a generous concession. How could the peoples of the world ask for more from their governments than that unlawful behavior of an international character be clearly identifiable and subject to condemnation and even, perhaps, to preordained sanction? If law seeks to condition the choices of those who exercise power, is it not wise to educate power holders in the consequences of their acts, in the responsibility which will attach to their choices? As consumer protection law, the work product of the International Law Commission should be seen with a less benevolent eye. The Commission is a law processor, chopping up the ingredients of law into small pieces and blending them into a bland gruel not likely to upset the most dyspeptic government official. Governments, with their special sensitivity to anything that may affect their power, have generally found the final product acceptable and even satisfying. However, the consumers - the peoples of the world - may have been less well served. Instead of limiting the power of governments, the ILC's version of state responsibility establishes the limits of their powers. It affirms rather than constrains power. From the viewpoint of the people, the purpose of law is to realize their values and interests by directing the holders of delegated power to respect those values and to serve those interests. It is unlikely that anyone but a government official would regard the confirmation of government power as the purpose of law. The long quest by the International Law Commission for a substantive system of state responsibility is a search for a mythical creature, the hunting of a snark. It threatens the incremental creation of a true international legal system in a true international society and reveals the long-term destructive effect of a government-dominated commission on the development of international law. I. THE WORK OF THE INTERNATIONAL LAW COMMISSION ON STATE RESPONSIBILITY A. History: 1949-87 The sad story of the Commission's work on state responsibility is an exceptionally instructive case study in the sociology of contemporary international law. It brings into sharp focus the formidable social, moral, and intellectual obstacles that face the reforming international lawyer in the last decades of the twentieth century. At its first session in 1949, the International Law Commission included state responsibility as the thirteenth of fourteen items on its

1988 / State Responsibility

3

initial list of topics selected for codification. 2 State responsibility was a topic with its own special history in the context of the movement to codify international law, which had been gathering momentum since the late nineteenth century. 3 It had already been the subject of codification efforts under the auspices of the League of Nations, interAmerican organizations, and the International Law Association and other nongovernmental bodies. 4 Harvard Law School had produced a draft convention on the topic in 1929 in preparation for the Hague Codification Conference of 1930. The rapporteur had been Edwin M. Borchard. 5 The topic was anything but innocent from a political point of view. To international lawyers from the United States and other countries with similar interests and backgrounds, state responsibility was essentially a matter of codifying the obligations of states in the treatment of aliens. In the Harvard draft convention and at the 1930 Hague Conference, the topic was known as "Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners."6 In contrast, international lawyers from Latin America and other countries with similar interests viewed state responsibility as essen2. Report to the General Assembly on the Work of the First Session, 4 U.N. GAOR Supp. (No. 10) at 3, U.N. Doc. A/925 (1949), reprintedin [1949] 1 Y.B. INT'L L. CoMM'N 277, 281. 3. During the period between the publication ofJ.C. Bluntschli's DAS MODERNE VOLKERRECHT DER CIVILISIERTEN STAATEN ALS REcHTSBUcH DARGESTELLT (1868) and the establishment of the ILC (1949), the high water mark of codification was reached in 1925 when the Pan-American Union published 30 projects for the codification of the International Law of Peace, including "fundamental bases of international law" and "declaration of rights and duties of states." See Scott, The Codificationof InternationalLaw in America, 19 AM. J. INT'L L. 333 (1925). For discussion of the problems of codification, see 1 L. OPPENHEIM, INTERNATIONAL LAW 3843 (1st ed. 1905); H. THIRLWAY, INTERNATIONAL CUSTOMARY LAW AND CODIFICATION (1972); Baker, The Codification ofInternationalLaw, 5 BRIT. Y.B. INT'L L. 38 (1924); Brierly, The Future of Codification, 12 BRIT. Y.B. INT'L L. 1 (1931). 4. For a survey of previous codification efforts on state responsibility, see First Report on State Responsibility, by Air. Roberto Ago, Special Rapporteur, [1969] 2 Y.B. INT'L L. COMM'N 125; 2LEAGUE OF NATIONS COMMITTEE OF EXPERTS FOR THE PROGRESSIVE CODIFICATION OF

INTERNATIONAL LAW [1925-28], at 116-31 (S. Rosenne ed. 1972). 5. Harvard Law School Research in International Law, The Law of Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners, 23 Am. J. INT'L L. SPECIAL Sup'P. 131 (1929), reprintedin International Responsibility: Report by F. V. Garcfa Amador, Special Rapporteur, [1956] 2 Y.B. INT'L L. COMM'N 173, 229 [hereinafter InternationalResponsibility]. See alto Borchard, "Responsibility of States," at the Hague Codification Conference, 24 AM. J. INT'L L. 517 (1930); Hackworth, Responsibility for Damages Caused in Their Territory to the Person or Property of Foreigners, 24 AM. J. INT'L L. 500 (1930). On the use of the word "responsibility," see Borchard, supra, at 520-27. 6. Harvard Law School Research in International Law, supra note 5. U.S. writers had already contributed much to the rationalization and systematization of the subject. Three particularly important works were: E. BORCHARD, THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD,OR THE LAW OF INTERNATIONAL CLAIMS (1915); C. EAGLETON, THE RESPONSIBILITY OF STATES IN INTERNATIONAL LAw (1928); M. WHITMAN, DAMAGES IN INTERNATIONAL LAW

(1937).

HarvardInternationalLaw Journal / Vol. 29tially a matter of confining the diplomatic protection of aliens within limits which respected the sovereignty of all states. The particular history and culture of Latin America had led writers from that region to take significantly different views not only of diplomatic protection and state responsibility but also of the fundamental nature and principles of international law. 7 It was apparent that the new International Law Commission's study of state responsibility would raise great intellectual and political difficulties.' It is possible to extract from the earlier codification efforts three different approaches to the technical problem of codifying the law of state responsibility. These might be called the "delicts" approach (identifying the delictual acts which give rise to responsibility, such as denial of justice, expropriation, or government-sponsored personal injury), the "obligations" approach (identifying the obligations, breach of which gives rise to responsibility, including obligations other than those regarding the treatment of individual aliens), and the "principles" approach (determining the rules and principles of international law applying to all kinds of unlawful acts). In 1953, the UN General Assembly requested the Commission to undertake "the codification of the principles of international law governing state responsibility."9 The inclusion of the word "principles" no doubt seemed a small victory for the Latin American position. That impression was confirmed in 1955 when Francisco V. Garcia Amador of Cuba was appointed by the Commission as special rapporteur on the topic. He submitted six reports between 1956 and 1961, each published in the corresponding Yearbook of the Commission. '0 Garcia Amador's first report was a general survey of the topic, concluding with a number of "bases of discussion."'" This report was an extraordinary document, departing completely from the Borchard position on the nature of state responsibility and from the delicts7. See A. ALVAREZ, LE DROIT DE L'AVENIR

(1916); A.

ALVAREZ, LE DROIT INTERNATIONAL

AMtRICAIN (1910); A. DE BUSTAMENTE Y SIRVEN, DERECHO INTERNACIONAL POBLICO (5 vols.,

internationalpublic et 1933-38); Yepes, Contribution de l'amirique latine au diveloppement du droit privi, 32 RECUEIL DES cOuRs 697 (1930). 8. "[O]ne of the most vast and complex [areas] of international law; - it would be difficult to find a topic beset with greater confusion and uncertainty." International Responsibility, Jupra note 5,at 175. "[Tihe conclusion seems inescapable that the subject of international responsibility of states for injuries to aliens is not ripe for codification." Borchard, supra note 5, at 540. 9. G.A. Res. 799, 8 GAOR Supp. (No. 17) at 52, U.N. Doc. A12630 (1953). 10. InternationalResponsibility: Sixth Report by F. V. GarciaAmador, Special Rapporteur, [1961] Report by F. V. GarciaAmador, 2 Y.B. INT'L L. COMM'N 1; International Responsibility. Fifth Special Rapporteur, [19601 2 Y.B. INT'L L. COMMN 41; InternationalResponsibility. Fourth Report International by F. V. Garcia Amador, Special Rapporteur, [1959] 2 Y.B. INT'L L. COMM'N 1; Responsibility. Third Report by F. V. GarciaAmador, Special Rapporteur, [19581 2 Y.B. INT'L L. COIM'N 47; InternationalResponsibility. Second Report by F. V. Garcia Amador, Special Rapporteur, [19571 2 Y.B. INTL L. COM,'N 104; InternationalResponsibility, supra note 5. 11. International Responsibility, supra note 5, at 219.

1988 / State Responsibilityapproach to codification. It was full of dramatic views as to the very nature of international law and many of its leading principles. Individuals would be subjects of the law entitled to pursue claims in their own right. There would be mention of the obligations of states .and of fundamental human rights, breach of which would give rise to international responsibility. It is not difficult to imagine the dismay with which many members of the Commission greeted the report. Some sense of that reaction can be gleaned from the summary records of the 370th-373rd meetings of the Commission in 1956, where the member governments set about bringing the rapporteur back into line. 1 2 Garcia Amador's second report' 3 was a pale shadow of the first and carried a title very close to that used at the 1930 Hague Conference. 4 The rapporteur had, after all, decided to deal with a much narrower field. There were still some difficult elements, including fundamental human rights and the rights of individuals as claimants, but the mills of the Commission soon began to grind them away. In subsequent reports and Commission discussions life gradually drained out of the topic. In 1961, the Commission asked the Harvard Law School to revise and bring up to date its 1929 draft convention. The Commission was later criticized for this in the Sixth Committee of the General Assembly. Admittedly, the source could hardly have been more "NorthWest" - an old university in the advanced industrial and capitalist country par excellence. But the new text prepared by Professors LouisSohn and Richard Baxter 5 was a fascinating and sophisticated "docu-

ment which would in effect have created a new international law of torts and would at least have been an interesting basis of worldwide discussion. However, it seems to have had no significant effect on the Commission's work. Instead, the UN General Assembly sought the views of governments concerning further work on the topic. In 1961, it asked the Commission to continue its work in light of the discussions in the Sixth

12. State Responsibility, 1956] 1 Y.B. INT'L L. COM'N 228, 228-51. 13. International Responsibility. Second Report by F. V. Garcia Amador, Special Rapporteur, supra note 10. The report was subtitled "Reponsibility of the State for Injuries Caused in Its Territory to the Person or Property of Aliens. Part I: Acts and Omissions." 14. The Hague Conference draft was entitled "Responsibility of States for Damage Caused in Their Territory to the Person or Property of Foreigners." Harvard Law School Research in International Law, supra note 5. 15. Sohn & Baxter, Responsibility of States for Injuries to the Economic Interests of Aliens, 55 AM. J. INT'L L. 545, 547 (1961), reprinted in Supplement, Preparedby the Secretariat, to the "Digest of the Decisions of International Tribunals Relating to State Responsibility," Annex VII, [1969] 2 Y.B.INT'L L. COMM'N 101, 142.

HarvardInternationalLaw Journal / Vol. 296 Committee and the observations of member states. 1 The Commission was being brought to heel. In 1962, the Commission appointed a subcommittee under the chairmanship of Roberto Ago of Italy. Following the submission of the subcommittee report, 17 Ago was appointed the new special rapporteur on state responsibility. If Garcia Amador had been the unreliable Galileo summoned to Rome and seemingly humbled, Ago was the doctor subtilis, who must at times have wondered what he was doing in that galire. He brought with him the brilliant theoretical tradition of Italian law. "I Substantially accepting what Ago had proposed in a memorandum,1 9 the subcommittee agreed to a unifying formula whereby the Commission should

give priority to the definition of the general rules governing the international responsibility of the State. It was agreed, firstly that there would be no question of neglecting the experience and material gathered in certain special sectors, specially that of responsibility for injuries to the person or property of aliens; and secondly, that careful attention should be paid to the possible repercussions which developments in international law may have had on responsibility. 20 As Ago summarized the Commission's decision in his first report: the codification of the topic. . . should not start with a definition of the contents of those rules of international law which laid obligations upon States in one or other sector of inter-State rela16. G.A. Res. 1686(XVI), 16 U.N. GAOR Annex 3 (Agenda Item 69) at 8, U.N. Doc. A/5020 (1961). Sub-Committee on State Responsibility, 1963] 2 17. Report by Mr. Roberto Ago, Chairman of the Y.B. INT'L L. COMM'N 227. 18. One of the dominant figures of that tradition, Dionisio Anziloti, had written a major work on state responsibilry. D. ANZILOTII, TEORIA GENERALE DELLA RESPONSIBILITA DELLO STATO NEL DIRITTO INTERNAZIONALE (1902). Anzilotti had been a participant in what was then the great debate about responsibility, namely whether there is a third concept between or illegality and responsibility that might be some sort of fault (either culpa dolui). The ILC has resurrected such a third category in a new form, as a substantive notion of responsibility between illegality and liability. "The Special Rapporteur firmly believes that, for purposes ofcodification, the international responsibility of the State must be considered as such, i.e., as the situation resulting from a State's non-fulfillment of an international legal obligation, regardless of the nature of that obligation and the matter to which it relates." First Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, supra note 4, at 127. See infra pp. 11-13. 19. Report of the International Law Commission Covering the Work of Its Fifteenth Sersion, E1963] 2 Y. B. INT'L L. COMM'N 187, 251. 20. Report of the International Law Commission on the Work of Its Fifteenth Session, 18 U.N. GAOR Supp. (No. 9) at 39, U.N. Doc. A15509 (1963), reprintedin [1963] 2 Y.B. INT'L L. COM,'N 187, 228.

1988 / State Responsibility tions. The starting point should be the imputability to a State of the violation of one of the obligations arising from those rules, irrespective of their origin, nature and object. . . . This first stage of the study will include . . . an indication of the circumstances 2 which, in exceptional cases, may prevent the imputation. ' Thus was the circle to be squared. Thus was state responsibility to be brought back to life. It was not to be an obligations approach or a delicts approach. It was a new and ingenious version of a principles approach. It would involve generalizing about the effect of unlawful acts without talking too much about any particular unlawful acts. It was the good fortune of the Commission that it chose Ago as its second special rapporteur. For it so happened that he had taken a particular theoretical view, parting company with Anzilotti 22 among others, to the effect that there was a generalizable aspect of responsibility (unlawfulness or, as the draft articles would quaintly term it, wrongfulness) distinguishable from the aspect of responsibility which is concerned with the consequences of wrongfulness. 23 In other words, generalizations about responsibility could only be made on the basis of what is common to the breaches of particular obligations. It must have come as a considerable relief to the members of the Commission to find something interesting to debate that did not require discussion of particular obligations, particular unlawful acts, or the detailed consequences of unlawfulness. Ago produced eight reports between 1969 and 1979, full of valuable research material and ideas. 24 In 1975, the Commission decided on the following structure for the draft articles: part one would concern the origin of international responsibility; part two would focus on the21. Report of the International Law Commission on the Work of Its Twenty-Firit Session, 24 U.N. GAOR Supp. (No. 10) at 30, U.N. Doc. A/7610lRev.1 (1969), reprinted in [1969] 2 Y.B. INT'L L. CoIAt'N 203, 233. 22. See supra note 18. 23. See Ago, Le dliit international, 68 RiCIJEIL DES COuRS 419, 532-33 (1939), where the Special Rapporteur criticized the prevailing view and argued that exceptions and exonerations apply to illegality rather than to responsibility or, put in crude common law terms, that they are defenses, in the strict sense, rather than pleas in mitigation. 24. Addendum to the Eighth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, [1980] 2(1) Y.B. INT'L L. COMM'N 13; Eighth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, [1979] 2(1) Y.B. INT'L L. COMI'N 3; Seventh Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, [1978] 2(1) Y.B. INT'L L. CoMM'N 31; Sixth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, [1977] 2(1) Y.B. INT'L L. COmM'N 2; Fifth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, [1976] 2(1) Y.B. INT'L L. CONX'N 3; Fourth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, [1972] 2 Y.B. INT'L L. COMM'N 71; Third Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, [1971] 2(1) Y.B. IN'L L. COM'N 199; First Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur:Addendum, [1971] 2(1) Y.B. INT'L L. COMM'N 193; Second Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, [1970] 2 Y.B. INT'L L. COMM'N 177; First Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, supra note 4.

HarvardInternationalLaw Journal / Vol. 29 content, forms, and degrees of international responsibility; and part three, if the Commission decided to include it, would discuss the settlement of disputes and the implementation (mise en ceuvre) of international responsibility.25 In 1980, the Commission completed work on part one of the draft articles 26 and submitted it to governments for 2 7 their comments. Government comments were sparse. In the meantime, Ago had ceased to be a member of the Commission and Willem Riphagen of the Netherlands had been appointed special rapporteur. Thd Commission took up work on part two. Between 1980 and 1986 Riphagen presented six reports on part two and two 8 reports on part three. 2 From the Commission's reports and summary records, it is apparent that it has had considerable difficulty with the proposed part two of the draft articles. The Commission has so far provisionally adopted only articles one to five of part two, has referred other articles to its Drafting Committee, and has begun discussion of 29 part three of the articles. In i987, at the Commission's thirty-ninth session, Gaetano Arangio-Ruiz of Italy was appointed special rapporteur for the topic, replacing Riphagen. No substantive discussion of the topic took place at the thirty-ninth session. It is difficult to avoid the impression that the whole enterprise is imbued with no more urgency or enthusiasm25. Report of the International Law Commission on the Work of Its Twenty-Seventh Session, 30 GAOR Supp. (No. 10) at 7, U.N. Doc. A/10010Rev. 1 (1975), reprinted in [1975] 2 Y.B. INT'L L. COMM'N 47, 56. 26. Draft Articles 1-35 (part one) are set out in Report of the InternationalLaw Commission on the Work of Its Thirty-Second Session, 35 U.N. GAOR Supp. (No. 10) at 59, U.N. Doc. A/351 10 (1980), reprintedin [1980] 2(2) Y.B. INT'L L. COMM'N 1, 30. 27. See Comments and Observations of Governments on Part I of the Draft Articles on State Responsibilityfor Internationally Wrongful Acts, [1982] 2(1) Y.B. INT'L L. COMM'N 15. 28. Seventh Report on State Responsibility, by Air. Willem Riphagen, Special Rapportenr, [1986] 2(1) Y.B. INT'L L. COMM'N -, U.N. Doc. AICN.4/397/1986; Sixth Report on the Content, Forms and Degrees of InternationalResponsibility (Part 2 of the Draft Articles); and "Implementation" (mise en teuvre) of internationalResponsibilityand the Settlement of Disputes (Part3 of the Draft Articles), by Mr. Willem Riphagen, Special Rapporteur, [1985] 2(1) Y.B. INT'L L. CoMII'N 3; Fifth Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles), by Mr. Willem Riphagen, Special Rapporteur, [1984] 2(1) Y.B. INT'L L. COMM'N 1; Fourth Report on the Content, Forms and Degrees of InternationalResponsibility (Part 2 of the Draft Articles), by Mr. Willem Riphagen, Special Rapporteur, [1983] 2(1) Y.B. INT'L L. CoNMi'N 3; Third Report on the Content, Responsibility (Part2 of the Draft Articles), by Mr. Willem Riphagen, Formsand Degrees of international Special Rapporteur, [1982] 2(1) Y.B. INT'L L. COMM'N 22; Second Report on the Content, Forms and Degrees of internationalResponsibility (Part 2 of the Draft Articles), by Mr. Willem Riphagen, Special Rapportenr, [1981] 2(1) Y.B. INTL L. COMM'N 79; Preliminary Report on the Content, Forms and Degrees of InternationalResponsibility (Part 2 of the Draft Artiles on State Responsibility), by Mr. Willem Riphagen, Special Rapporteur, [1980] 2 Y.B. INT'L L. COMM'N 107. 29. For discussion of part two at the thirty-seventh session, see [1985] 1 Y.B. INT'L L. COMM'N 84 (records of 1890th-1902d meetings). The five articles of part two provisionally adopted by the Commission are set out in Report of the InternationalLaw Commission on the Work of its Thirty-EighthSession, 41 GAOR Supp. (No. 10) at 97, U.N. Dc. A/41/10,,(1986), reprinted in [1986] 2(2) Y.B. INT'L L. COMM'N 1, 38. For discussion of part three at the thirty-eighth (records of 1952d-1956th meetings). session, see [1986] 1 Y.B. INT'L L. COMM'N -

1988 / State Responsibility today than at any time during all the decades of the Commission's work. It remains to be seen whether Professor Arangio-Ruiz will be able to rescue the topic. He brings with him not only the Italian legal tradition but also a distinctive approach to the general theoretical problems of understanding and organizing the legal system of inter0 3 national society. B. Appraisal The long story of the work of the International Law Commission on the topic of state responsibility may be judged on two levels the sociological and the analytical. Sociologically, it is an exceptionally vivid illustration of the bureaucratization of international society. Bureaucratization, in Max Weber's prophetic sense of the term, involves not only the dominance of a certain social group but also the dominance of a certain mentality. The great increase in the overall energy of public life within nationstates in the twentieth century has been matched by a dramatic rise in the energy of the public life of international society. Increases in population, increases in the volume of international transactions, and increases in technological, ideological, and especially military power have called forth a great intensification of activity on the part of specialists. Those specialists include businessmen, bankers, and technical experts of all kinds, and especially the professionals of international public life: the politicians, the diplomats, and the national and international civil servants. The increase in the power of these professionals parallels that of their opposite numbers in national public life. The difference is that there has not been a corresponding increase either in the democratic accountability of such people to the citizens whose lives they affect or in the participation of nonprofessionals in the international decisionmaking process. Diplomacy is still a relatively closed world, esoteric and remote. The working method of the International Law Commission symbolizes this world. It is a physical manifestation of the underdevelopment of the public life of international society, with all its incestuous intimacy, remoteness, and technicality, its spurious detachment from30. See, e.g., the following works by Professor Arangio-Ruiz: Refletions on the Problem ofOrganization in Integrated and Non Integrated Societies, 44 RIvIsTA DI DIRTrTO INTERNAZIONALE 585 (1961); L'individuo e il diritto internazionale, 54 RiVISTA DI DIRITTO INTERNAZIONALE 561

(1971) (especially 601-08); The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, 137 RECUEIL DES couRs 419 (1972) (especially 634-63, 722-31); L'Etat dans le sen du Droit dss Gens et la Notion du Droit international, 26 OSTERREICHISCHE ZEITSCHRIFT FOR OFFENTLICHES RECHT 3 (part one), 265 (part two) (1976) (especially 324-31).

HarvardInternationalLaw Journal / Vol. 29 the teeming reality beyond the comforting walls of the United Nations buildings in Geneva and New York. But it is also a psychological manifestation of the dominance of a particular sort of governmental spirit which national societies, in the capitalist West and now in the marxist East, have been seeking more and more to attenuate. This spirit is no longer precisely the spirit of autocracy or oppression characteristic of old regimes. It is a specifically bureaucratic spirit which seeks to get the job done with the minimum of spiritual c6mmitment and the maximum of personal security. It is the spirit of the quiet life rather than the good life, seeking to gain an accumulation of minor tactical successes in relation to one's professional equals rather than to make original and energetic contributions to the general interest of society. In the relentless oratio obliqua of the summary records of the International Law Commission and the Sixth Committee of the UN General Assembly, we can watch with anguished fascination the bureaucratization of international law. Government officials, and the mentality of government officials, have gained control over the development of international law. Even the dubious charisma of academic lawyers has been largely eliminated by assimilation and marginalization. International law, which was an aristocratic pursuit, has surrendered to the cold embrace of the bureaucracy. It is a bleak prospect. The negative and minimalist tendency of bureaucratic strategies should not be allowed to mislead. There is no limit to the power of the bureaucratic spirit. There is an accumulator or multiplier effect and a principle of inertial momentum that cause systems to produce large-scale effects from small-scale activity even after they have lost their original purpose and their only remaining function is to go on doing what they have been doing. The bureaucratic spirit can produce vast real world effects. It was the bureaucratic spirit, illuminated by shafts of world historical charisma from a handful of statesmen, which created the five self-surpassing triumphs of bureaucracy - the League of Nations, the United Nations system, the Havana Charter (the aborted International Trade Organization), the UN Conference on Trade and Development, and the UN Law of the Sea Convention. It was the bureaucratic spirit which virtually destroyed three of them and is set to destroy the other two. It was a perfect, almost miraculous, communion of charisma and the bureaucratic spirit which produced the European Communities, the most important development in the structure of international society since the Peace of Westphalia of 1648. It is the bureaucratic spirit, unalloyed by charisma, which is dragging the Communities down to its level and stunting their natural development.

1988 / State ResponsibilityIn the end, the pursuit of minor tactical advantage over "the other side" adds up to a war of all against all, as the other side turns out to be the East or the West, communism or capitalism. It is an outcome no professional of public life would actually have sought, an outcome for which none would expect to bear moral responsibility, let alone "international responsibility." We should bear in mind the sociological setting of the International Law Commission in judging its work at the analytical level. We cannot allege that those who have participated in the drafting work intended to produce dire consequences for the future of international law and international society. They have been doing their assigned duties diligently, more than diligently in some cases. But the bureaucratic method and spirit generate cumulative consequences which exceed the will and the purposes of the bureaucrats. In the case of the Integnational Law Commission, the mere existence of its reports and draft articles has an effect on the development of international law. An aura surrounds the remarkable scholarly work of the Commission's special rapporteurs. Their reports on state responsibility, as on other topics, are among the most valuable material sources of international law. The aspect of the draft articles on state responsibility that demands our particular attention is their fundamental structural feature - the postulation of a concept of "responsibility-arising-from-wrongfulness" distinct from the wrongful act and from the consequences of a wrongful act. This middle category is a dangerous fiction, an unnecessary intrusion into the systematic structure of a legal system. But it is not merely analytically unnecessary. In the particular case of international law, it entails consequences of the most serious and undesirable kind. The draft articles are based on the initial premise that state respon31 sibility results from the "internationally wrongful act of a State." The internationally wrongful act of a state involves conduct "attributable to the State under international law" that "constitutes a breach of an international obligation of the State." 32 The act of a state is to31. Draft art. 1,Report of the International Law Commission on the Work of Its Thirty-Second Session, supra note 26, at 59, reprintedin [1980] 2(2) Y.B. INT'L L. COMM'N 1, 30. The English text of the draft articles uses the unexpected word "wrongful," with its interesting moral overtone, rather than the word "unlawful." "Wrongful" first appeared in the English version of Ago's original memorandum of 1962, supra note 19, to render the French word "illicite." A note in Ago's report, Second Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, supra note 24, says that the English-speaking members of the Commission preferred it to the word "illicit." The 1929 Harvard draft had used the word "wrongful" in only one article, the provisions otherwise being phrased in terms of breach of obligation and responsibility. It should also be noted that the Commission long ago dispensed with the term "state responsibility" and has adopted the term "international responsibility," except in the title of the topic on its agenda. 32. Draft art. 3(b), Report of the InternationalLaw Commission on the Work of Its Thirty-Second Session, inpra note 26, at 59, reprinted in [1980] 2(2) Y.B. INT'L L. COMM'N 1, 30.

HarvardInternationalLaw Journal / Vol. 29 be characterized as internationally wrongful only "by international law." Putting these ideas together, "every internationally wrongful act of a State entails the international responsibility of that State." 33 In short, the draft articles postulate that all the different kinds of obligation and different kinds of breach give rise to a single kind of consequence called "responsibility." Responsibility in this sense has two characteristics: (a) it has a particular substantive content of its own; and (b) it gives rise to certain further consequences in terms of liabilities, rights, and, eventually, remedies. In the normal course of events, a wrongful act entails painful consequences: a judgment and possibly a penalty. The Benthamite price of lawbreaking is the risk of pain, not the possibility of an idea. The wages of sin are death, not responsibility for sin. In the terms of legal analysis, wrongdoing gives rise to a liability in the offender owed to others who have rights which may be enforced by legal processes. Liability is not a consequence of some intervening concept of responsibility. It is a direct consequence flowing from the nature of the wrong (the content of the rights of the offended party and the duties of the offender) and from the nature of the actual wrongful act in the given case (in particular, the content of the specific rights and duties which have been affected by the breach in question). The remedies available are a function of integrating the nature of the liability in the given case with the nature of the particular wrongful act. Responsibility cannot be considered abstractly as a universal phenomenon but only concretely in relation to particular obligations. Admittedly, some obligations are relatively universal in character, in the sense that they apply in general terms to all legal persons within a legal system (for example, in international law, the duty to respect4 3 the territorial integrity and political independence of another state). Other obligations might be regarded as attaching to classes of legal persons (for example, in international law, attaching to coastal states or belligerent states). But universal and class obligations must still be considered in relation to the specific forms of liability which they generate and the remedies available to the offended party. It does not follow that there is any shared substantive content of universal and class obligations beyond the fact that they apply to all states or all members of a given class. Responsibility is used in municipal law to separate wrongdoing by a person whose mind functions in an abnormal way from the conse33. Draft art. 1, id. 34. In a tantalizingly brief passage in its judgment in the Barcelona Traction case, the International Court of Justice considered a category of erga omnes obligations (and hence ab omnibus obligations, as it were). Barcelona Traction Light and Power Co. (New Application) (BeIg. v. Spain), 1970 IC.J. 3, 33 (Judgment on Merits of Feb. 5).

1988 / State Responsibility quences of the wrongdoing. Responsibility is used precisely to meet the need to break the connection between act and consequence where there is a break in the connection between will and act in the mind of the wrongdoer. The concept of responsibility is also used in municipal law to deal with certain problems of attribution or imputation, especially where there is not a direct connection between the wrongdoer and the wrongful act. Here it is used as a part of the identification of the criminal or tortious act in question or, more strictly, as part of the delimitation of the relevant powers and duties. A coconspirator or employer may be held liable for an act actually committed by someone else because the law is effective only on that basis in the precise circumstances in question. If the word "responsibility" is used in such circumstances, it is only as a shorthand form for the full content of the powers and duties in question. It is not an instance of some general concept of responsibility which can be switched on and off by reference to the general categories of coconspirator or employer. Neither of those terms is a general legal concept. They have meaning only in specific contexts in relation to specific powers and duties. Analytically, therefore, it is not necessary to interpose a new concept of responsibility between wrongfulness and liability. Responsibility might be retained, if at all, only as a general term for all the consequences of wrongdoing. The burden of responsibility may be psychic (feeling of guilt), social (moral opprobrium or interpersonal tension), economic, religious, or legal. But the burden attaches to the breach of obligation, which is the wrongdoing, not to an idea derived from consideration of the wrongdoing. To determine the legal content of responsibility is to create a category between wrongdoing and liability for its consequences. This category is not only unnecessary but dangerous since it tends, like all concepts, to take on real existence. It tends itself to become a cause of new and specific real world effects. II. THE DANGEROUS FICTION OF STATE RESPONSIBILITY Thus the objection to the notion of responsibility is not an insignificant technical or analytical objection. It is an objection to a particular intellectual structure which has the most serious substantive consequences. Those consequences are spelled out in stark and painful detail in part one of the Commission's draft articles. Two especially vicious consequences result from using responsibility as a general and independent category in international law. First, it consecrates the idea that wrongdoing is the behavior of a general category known as "states" and is not the behavior of morally respon-

HarvardInternationalLaw Journal / Vol. 29 sible human beings. It therefore obscures the fact that breaches of international law are attributable formally to the legal persons known as states but morally to the human beings who determine the behavior of states. Second, if responsibility exists as a legal category, it must be given legal substance. In particular, general conditions of responsibility have to be created which are then applicable to all rights and duties. The net result is that the deterrent effect of the imposition of responsibility is seriously compromised, not only by notionalizing it (the first vicious consequence) but also by leaving room for argument in every conceivable case of potential responsibility (the second vicious consequence). When lawyers leave room for argument there is much room for injustice. A. The Unmoral State The subjects of international law are states but only in the sense that the present conceptual structure of international law attaches legal rights and duties to the category "state." The subjects of international law, in the sense of the persons whose behavior is conditioned by the law, are government officials who implement those rights and duties and also the citizens who may have to pay for such implementation with their possessions or their lives. The subjects of international law, in the sense of those for whose benefit the law assigns all rights and duties, are the peoples of the world. The wrongful act of a state is the wrongful act of one set of human beings in relation to another set of human beings. Thus the effect of interposing responsibility between a wrongful act and liability for its consequences is more than conceptual or structural. Its substantive consequence is that those human beings who implement the law's rights and duties are able to perceive themselves, on the one hand, as entitled to implement the state's rights and duties and, on the other hand, as bringing about responsibility in the state if they implement them unlawfully. In such circumstances, it is not surprising that states behave badly. The moral effect of the law is vastly reduced if the human agents involved are able to separate themselves personally both from the duties the law imposes and from the responsibility which it entails. The moral discontinuity between the personal obligations of the government official and the obligations of the government is the cause and effect of the legal discontinuity between international law and municipal law. These discontinuities sustain each other. They explain the otherwise mysterious fact that governments behave externally in ways which would be inconceivable internally: bringing about human

1988 / State Responsibility deaths by the million as a matter of policy or contriving and condoning social injustice on a vast scale because of considerations of sovereignty, independence, sovereign equality, and domestic jurisdiction. If international lawyers seek the long-term improvement of international society and the increasing realization of justice, their aim must be to bring together the moral sense of the human being acting in national society and the moral sense of the human being acting in international society. The values that the law seeks to make actual are not different in the two realms; they are identical. Rational societies have long struggled to reach the understanding that individual human beings cannot evade their moral and legal responsibility by attributing their actions to the state and attaching to the state the responsibility for their actions. In democracies of both the liberal and the marxist aspiration, salus populi, and not salus reipublicae, is regarded as the highest political value. Such an objection to the consecration of the new conceptual category called state responsibility may seem too theoretical or idealistic or both. It is not. Political systems are structures of ideas as well as structures of power. Theories are facts. Great real world consequences flow in political systems from conceptual choices. Such a concept of responsibility enters the system at the critical point at which the effectiveness of a system of obligation is liable to be determined, namely the point at which the system responds to a breach of obligation. An ironic consequence of introducing a concept of international responsibility is that it necessitates the possibility of attaching liability in exceptional cases to individual human beings by the addition of another category, the so-called international crime. 35 The irony of such a proposal lies in the fact that such criminal behavior is precisely the behavior for which collective, and not individual, liability is more appropriate. The most heinous international behavior will not be discouraged by attaching liability to individual human beings if it has the effect of removing legal and moral liability from the whole society which makes such behavior possible and for whose benefit the behavior may well be carried out. To attach liability to individual human beings in such cases is the mirror image of attaching ordinary liability to the notional state. Each leaves the moral force of the law in its weakest possible state. Executing a few international criminals is not likely to encourage moral and lawful behavior by whole societies. It is likely35. For surveys of the background for such ideas, see Report by Ricardo J. Alfaro, SpecialRapporteur, 1950] 2 Y.B. INT'L L. COMm'N 1; Report by Emil Sandtrfm, [1950] 2 Y.B. INT'L L. COMMN 18; see also Fifth Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur,

supra note 24, at 24-54.

HarvardInternationalLaw Journal / Vol. 29 merely to increase the ambition and self-justifying arrogance of the leaders of such societies. More ominously, identifying a limited group of international crimes for which individual liability is specified necessarily excludes from that category other behavior whose effects may be more serious but which governments do not happen to regard as grossly abnormal or criminal. There might, for example, be an international tort of governmental negligence for bringing about social, economic, moral, or physical damage to the peoples of the world in the form of poverty, disease, illiteracy, destruction of the physical environment, or moral corruption. On occasion, such governmental negligence might be regarded as gross enough to constitute an international crime. On occasion, too, there might be instances of an international crime known as "conspiracy to commit governmental negligence," where the collective activities of governments produce the same kind of effects. But the tort or crime of governmental negligence is also, in the context of modern political systems, typically a collective offense, the work of all those participating in a system which fails to respect either its own values or the values embodied in the law. In short, the International Law Commission would have been better advised to refuse to work on the topic of state responsibility and to have offered instead to work on an international law of obligations. The Commission's proper purpose would then not be to reduce conventional lawyers' wisdom to bland and dangerous formulas. It would be to explore the question of what obligations should exist in international law on the assumption that the purpose of international law is to make actual the values and to serve the interests of the peoples of the world. There is no possibility of the International Law Commission, in its present government-dominated form, acknowledging any such overriding objective for its work. B. The State Beyond Law The second nefarious effect of interposing a concept of responsibility between wrongdoing and liability is that it becomes necessary to give some legal substance to the concept. Its consequences must be determined. It must be given content and limits. Because it is being used as a legal concept, its legal substance must take the form of rights and duties, including the duties attaching to powers. Chapter five of part one of the draft articles is worthy of standing alongside the notorious part V of the Vienna Convention on the Law of Treaties among the sadder memorials to the work of the International Law Commission. The chapter is entitled "Circumstances Precluding Wrongfulness." Confucius is supposed once to have considered

1988 / State Responsibility the question of whether one single phrase could destroy a whole country. The title to chapter five may be an example of a single phrase which could destroy the possibility of a true international society. Chapter five lists six circumstances precluding wrongfulness: consent, countermeasures in respect of an internationally wrongful act, force majeure and fortuitous event, distress, state of necessity, and selfdefense. Because these exceptions are attached to the Commission's strange concept of wrongfulness and thereby to its pseudocategory of responsibility, they would be available to justify otherwise unlawful behavior in all circumstances. Subject to the specific terms of each exception, they would justify behavior unlawful by reference to any obligation in any field. 36 Justifying unlawful behavior means, at least to lawyers, that the behavior is regarded as lawful. Therefore the net effect of chapter five is that any behavior covered by the terms of the exceptions would be lawful. It is possible to apply a simple test to chapter five. Imagine that in a municipal law system the same. exceptions were available to the government in its dealings with individual citizens, with no provision for the control of their exercise by regular courts of law or through democratic accountability. This thought experiment leads to a simple conclusion - that such provisions are the very negation of the rule of law. Indeed, they contradict the very idea of law in society. There are few people left who share the optimistic belief of some of our nineteenth century predecessors in the naturally progressive development of humanity and human society. But many would still be prepared to believe that humanity can learn from its past. Among the clearest lessons of our collective experience is that the concept of state necessity is the most persistent and formidable enemy of a truly human society. It has required great struggles of rationality and of power over many centuries to deal with the apparently reasonable claim of government or the state to act in the interest of society even at the cost of individual rights when such an act "was the only means of safeguarding an 37 essential interest of the State against a grave and imminent peril."36. Chapter five thus generalizes exceptions which might apply to some obligations and makes them apply to all obligations in principle. Put in symbolic terms, the argument isthe following: Some A is B.

All A is C.Therefore all C is B. (Some obligations are subject to exceptions. All obligations give rise to responsibility. Therefore, all responsibility is subject to exceptions.) It is a wry tribute to international law that the survival of humanity may turn on some false inductive reasoning by international lawyers. 37. The two defining characteristics of the so-called "state of necessity" are that "the act was the only means of safeguarding an essential interest of the State against a grave and imminent

HarvardInternationalLaw Journal / Vol. 29 The response of political philosophy and political practice to the claim of state necessity has been to develop democratic structures, including structures of education and information, that make it possible to equate the will of the constitutional organs with the will of the people, so that the people may then be said to assent to the existence and exercise of exceptional powers under democratic control. There have also been three specifically legal responses. The first has been the Rule of Law. Internally, the state has specific legal powers, like any other subject of the law. It must prove its powers and is kept strictly within the limits of those powers. If it needs more powers, they must be conferred specifically by the regular legislative process.,38 The admittedly exceptional requirements of the state are met by conferring exceptional powers and by modifying the legal obligations of the state on a case-by-case basis, not by placing the state in an exceptional position in its general relation to law or by making it "responsible" before the law in some unique sense. International lawyers, at least since the earliest Spanish period of international law, have done little to convince governments that there is any such rule of law principle in international society. Instead, they have chosen to tell governments that states (and the intergovernmental organizations which states establish) are the unique subjects of international law. International lawyers have told governments that states are the legislators of international law and that governments are the unique and privileged agents of states. The International Law Commission would now like to tell governments that states may, in appropriate circumstances, regard themselves as above the law. It is not surprising that governments accept and encourage such a view of international law. It is also not surprising that the people of the world do not see international society as a society to which they belong naturally as members of the human race, as a society truly acting as the source of their actual and potential welfare and happiness. It is not surprising that the people of the world see international society, on the contrary, as nothing but the source of endless threats and dangers - political, economic, social, and moral.

peril" and "the act did not seriously impair an essential interest of the State towards which the obligation existed." Draft art. 33, Report of the InternationalLaw Commission on the Work of Its ThirtySecond Session, supra note 26, at 68, reprintedin [1980] 2(2) Y.B. INT'L L. COMMb'N 1, 33 (emphasis added). The emphasized phrase presumably refers to the state to which the obligation is owed, a jurisprudential notion of some complexity. 38. "If the king himself has no power to declare when the law ought to be violated for reason of state, I am sure we his judges have no such prerogative." Entick v. Carrington, 19 State Trials 1029, 1073 (C.P. 1765). The case concerned a warrant from the Secretary of State to obtain the private papers of the author of an allegedly seditious newspaper.

1988 / State ResponsibilityThe second legal response to the claim of the state to be above or apart from the law has been constitutionalism. 39 The state obtains its powers from the constitution and nowhere else. The constitution determines not only the content of state powers but also their limits, including inalienable rights and unabridgeable duties. Those limits are legal limits on all the organs of the constitution. They control the making of the law and the application of the law. In this way law is made subject to law. Sovereignty evaporates as a necessary structural concept in municipal law. It remains only, if at all, in its paradoxical and historically ironic form as the sovereignty of the people and in its externalized and fossilized form as international law's characterization of the essential nature of nation-states in relation to one another. There is no written international constitution. Elements do exist of an unwritten or latent constitution, including the Magna Carta known as the United Nations Charter, which could well in the future be articulated, recognized, and developed as a genuine and significant international constitution. But there is little hope of the International Law Commission in its present form undertaking such a task in an appropriate spirit. No more effort would have been expected from the servants of a Tudor monarch in England or of a Bourbon monarch in France. The third legal response to the claim of governments to have residual general powers to override the law has been the development of fundamental or human rights. 40 Such a development was designed to set limits beyond which the law itself could not go. By providing a source of rights beyond the law itself, either in a constitution or in a document taking effect under international law, it has been possible to remind those who control the making of law that society has ultimate values which take precedence over the positive law. The two weaknesses of such a system have been, first, that the rights must be formulated in general terms and so must be applied by deduction to individual cases, and second, that they must be formulated in terms

39. See M. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (1967); Corwin, The "HigherLaw" Background ofAmerican ConstitutionalLaw, 42 HARV. L. REV. 149 (1928) (part one), 42 HARv. L. REV. 365 (1929) (part two). 40. A man, as has been proved, cannot subject himself to the Arbitrary Power of another; and having in the State of Nature no Arbitrary Power over the Life, Liberty, or Possession of another, but only so much as the Law of Nature gave him for the preservation of himself and the rest of Mankind; this is all he doth, or can give up to the Common-wealth, and by it to the Legislative Power, so that the Legislative can have no more than this. Their Power in the utmost Bounds of it, is limited to the publick good of the Society. It is a Power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the Subjects. J. LOCKE, Two TREATISES OF GOVERNMENT 402-03 (P. Laslett ed. 1960) (1st ed. 1698).

HarvardInternationalLaw Journal / Vol. 29 which allow for exceptional and extreme circumstances. 4 1 The first weakness has been mitigated by giving the task of application to courts of law and court-like bodies, so that the application is as secure as those courts and bodies are independent of those who control governmental power. The second weakness has been very difficult to remedy, but has been mitigated at least by the fact that such exceptional and extreme circumstances may have to be proved by those who control governmental power and may f4ll to be judged by courts of law. There are no fundamental rights in international society. There are only peremptory norms. Peremptory norms -have been an ingenious attempt to introduce into international law something having the same quality as fundamental rights in municipal law. 42 At the same time, however, this attempt has been critically incomplete. There are three essential features of the peremptory norm as developed in the ILC's draft articles: (a) the peremptory norm must be "accepted and recognized by the international community of states as a whole"; (b) it must be recognized as a legal rule having the unique characteristic that "no derogation is permitted"; and (c) it can be 4 modified only by another norm having the characteristics (a) and (b). 5 It is characteristic (a) that prevents the peremptory norm from performing adequately the function of fundamental rights. Making peremptory norms effective would require finding an alternate legislative source to the "international community of states," which would involve breaching more than one taboo of the present international system. It would be necessary to recognize the interest of the peoples41. The European Convention for the Protection of Human Rights and Fundamental Freedoms provides for derogations from the Convention "in time of war or other public emergency threatening the life of the nation." Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 15(1), 213 U.N.T.S. 221, 232. Mlany of the rights in the Convention also contain limitations in the interest of public safety and public order. See, e.g., id., art. 11, 213 U.N.T.S. 221, 232 (right to freedom of peaceful assembly and freedom of association with others). 42. The concept of peremptory norms was derived by analogy from the municipal contract law concepts of illegality and public policy. See A. McNAIR, THE LAw OF TREATIES 213-14 (1961); Ago, Droit des trais i la lumire de la Convention de Vienne, 134 REcUIIL DES COURS 296, 322-24 (1971); Reports of the International Law Commission on the Work of the Second Part of Its Seventeenth Session and on its Eighteenth Session, 21 GAOR Supp. (No. 9) at 76, U.N. Doc. A/6309/Rev. 1 (1966), reprinted in [1966] 2 Y.B. INT'L L. CONIM'N 169, 247; Second Report on the Law ofTreaties, by Sir Humphrey Wadock, Special Rapporteur, [1963] 2 Y.B. INT'L L. COmaIza'N 36, 52; Report by Mr. H. Lauterparht, Special Rapporeur, [1953] 2 Y.B. INT'L L. Cozihi'N 90, 155; Yepes, MbnoireprsentiparM.J.M. Yepes, [1953] 2 Y.B. INTL L. CoMM,'N 163, 165. See aso Alexidze, Legal Nature ofJus Cogens in Contemporary International Law, 172 REctEIL DES couPs 219 (1981); Gaja, Jus Cogens Beyond the Vienna Convention, 172 RECUEIL DES coORs 271 (1981); Robledo, Le ius cogens international:sa genise, sa nature, ses fonctions, 172 RECUEIL DES COURS 9 (1981). 43. Draft art. 29(2), Report of the InternationalLaw Commission on the Work of Its Thirty-Second Session, supra note 26, at 67, reprintedin [1980] 2(2) Y.B. INT'L L. COMM'N 1, 33.

1988 / State Responsibility of the world in the international legal system of which they are the true subjects and the true sovereigns, the true legislators and the true beneficiaries, and on behalf of whom governments are trustees who can always be called to account. It would also be necessary to ensure that the interpretation and application of peremptory norms would be regularized, in courts of law or court-like bodies reflecting real democratic accountability of each government of the world to all the peoples of the world. In the meantime, peremptory norms are an unconvincing limitation on the power of states to set aside the law in the name of exceptional circumstances. The peoples of the world are likely to gain very little reassurance from the concept of peremptory norms as a defense against the abuses of power by governments acting in the name of states in the current state of international law. Instead of elaborating the fiction of responsibility, it might have been better if the International Law Commission had chosen to explore the possibility of an international bill of rights. Such a bill of rights would be concerned not with the treatment by a government of its own nationals, a problem dealt with at present by painfully inadequate government-dominated human rights arrangements, but with the behavior of the governments of the world generally, in relation to each other and to all the peoples of the world. It might contain fundamental duties of governments, drafted as such rather than being left as the implied correlatives of fundamental rights. Such duties could be affirmative (to achieve certain fundamental social objectives) as well as negative (to refrain absolutely from certain behavior). In any case, as rights or duties, they would be a limit on the power of all governments acting individually and collectively. Once again there is no possibility that the International Law Commission in its present form would be willing to undertake such work in an appropriate spirit. As if the defense of state necessity were not enough to destroy any possibility of an international rule of law, chapter five of part one of the draft articles would create two more universal exceptions to state responsibility called "self-defense" and "countermeasures in respect of an internationally wrongful act.44 These two exceptions amount to something akin to self-help. Selfhelp means that the subjects of law take the enforcement of the law into their own hands. It is distinguishable in principle from anarchy only in that those taking such action may claim that they are acting to assert a legal right; in other words, they acknowledge the existence of law. Self-help is indistinguishable from anarchy in practice if it is regarded by the subjects of the law as the normal sanction of the law.44. Draft arts. 34 and 30, id.

HarvardInternationalLaw Journal / Vol. 29 Law is objective or it is not law. Law obliges or it is not law. If the subjects of the law are able to regard the interpretation and application of the law as a matter for their judgment, then law is not an objective limitation on their behavior. If the subjects of the law are able to regard law as dependent upon their will to enforce it, then law is not an obligation but merely a possibility of action. In either case, there is the form but not the reality of law. Self-defense is not a general category under international law covering any kind of action necessary in extremis to protect rights or interests. Self-defense in international law, as in municipal law, arises as a legal justification for the use of force in certain extreme circumstances. It is part of the law on the legitimate use of force, not a general feature of legal liability. Codification of the law relating to self-defense could be part of a codification of the law relating to the use of force. In the context of such a codification it would be necessary to determine (a) the precise circumstances in which a right (power) of self-defense may arise, and (b) the precise conditions attaching to the exercise of that right (power), that is, the limits of the right (power) and the obligations attaching to it. The United Nations Charter contains only a partial codification of the right of self-defense. It does two things. It legislates by reference to general international law. It also introduces limitations of its own by virtue of the precise terms of articles 2(4) and 51, the relationship between them, and the impact of the whole Charter structure and system on the international use of force. It cannot be too strongly stressed that the United Nations Charter does not say or imply that self-defense is legitimate so long as it is not inconsistent with the Charter provisions. It does not create by implication a universal right of self-defense, permitting unlawfulness of any and every kind to defend what the government of a state perceives to be that state's interests or even the interests of states in general. The reason why a legal system permits self-defense as an exception, despite its threat to the very essence of law in society, is a precise one. Human beings cannot be expected to surrender their lives when they are physically unable to invoke the law and other social defenses to protect them. In other words, self-defense is the legal recognition of the ineradicable human instinct of self-preservation. It is not a general residual right to protect interests, however major, by any appropriate means. It is not a general safety valve in the systematic structure of 45 the law.45. The International Court of Justice has most recently discussed the nature of the right of self-defense in its decision in Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 102-06, 119-23, 126-27 (Judgment on Merits ofJune 27).

1988 / State ResponsibilityThe International Law Commission defines a countermeasure as "a measure legitimate under international law against another State, in6 4 consequence of an internationally wrongful act of that other State." The measure in question is an otherwise wrongful act, so that the provision recalls the classic concept of reprisal. The effect of attaching this exception to the fictional concept of state responsibility is that it becomes universally available in all circumstances where another state has committed a wrongful act under international law, subject only that the countermeasure must be "legitimate under to the requirement '47 international law. " 48 Even without the Commission's commentary on the draft article, it is not difficult to imagine why the Commission avoided the word "reprisals." Although there is not much settled international law on the use of reprisals, there is even less on the use of "countermeasures." By making draft article 30 rely solely on an onward reference to international law, the Commission is ensuring that the positive content of the power (to take countermeasures) will be readily understood and used, while the negative content (the limits on the power set by international law) will be ineffective. The growth of the concept of countermeasures in international law has been a troubling development. 49 The practice of retaliation is as old as relations between states. Like presocietal or nonsocietal or immature human beings, states have always been inclined to see will and force as the natural poles of their struggle to survive. Force is the most natural method available to a human being to modify the will of another. But physical force has great costs and risks attached to it. If it is possible to make the adversary recognize that an act of will is likely to be met by a counteract of will, then it may be possible to achieve a deterrent effect without the application of physical force. Countermeasures are the continuation of force by other means. Countermeasures are the first step of the calculating human being beyond the world ruled by instinct. Countermeasures have the pattern of physical force without some of its perils. To be in a society means to have gone beyond both physical force and retaliation as methods of survival and to have entered the worldSee also the dissenting opinions of Judge Schwebel, id. at 347-48, and Judge Jennings, id. at 528.46. Draft art. 30, Report of the InternationalLaw Commission on the Work of Its Thirty-Second Session, supra note 26, at 67, reprinted in (19801 2(2) Y.B. INT'L L. COMM'N 1, 33. 47. Id. 48. The ILC commentary on draft article 30 explicitly explains the nonuse of the word "sanction" and implicitly explains the nonuse of the word "reprisal." Report of the International Law Commission on the Work of Its Thirty-FirstSession, 34 U.N. GAOR Supp. (No. 10) at 326, U.N. Doc. A/34/10 (1979), reprintedin [1979] 2(2) Y.B. INT'L L. COMM'N 1, 121. 49. See generally id. at 311-28, reprintedin [1979] 2(2) Y.B. INT'L L. CoMM'N 1, 115-22.

HarvardInternationalLaw Journal / Vol. 29 of cooperation. To have law means to have a system of organized cooperation. There are those who have chosen to perceive society as nothing more than a system of organized force and law as nothing more than a system of organized will. For such people, international society and international law are merely exposed examples of what is the underlying truth of all society and all law. The reply to such views has taken the best efforts of social philosophy over the whole period of accumulated human thought. Clearly all society must depend on the interaction of the wills of the members of society, exchanging benefits, exchanging burdens, setting rewards and punishments, seeking to influence the distribution of scarce resources. But human social progress, such as it has been, would not have been possible based on a concept of society as merely a struggle of will and power. Complex modern societies could not survive on such a conceptual basis. International society will not survive, let alone progress, if it has the concept of retaliation at its heart rather than the concept of cooperation. The foundation of law is not force but justice. To place the concept of countermeasures at the very heart of legal responsibility, at the very heart of the character of a legal system, is thus to elevate to a position of high dignity one of society's least dignified and least sociable aspects. To do so in international law is to condemn international society to be what it is. III. CONCLUSION International lawyers are not the servants of governments but of international society. As lawyers they are servants not of power but of justice. It is thus the duty of international lawyers, even lawyers employed by governments, to consider not merely what is in the interest of this or that state but what is in the long-term interest of international society. More than any other kind of lawyer, international lawyers have a universalizing function. The rule which they perceive in one situation must be capable of conforming with a hypothetical rule for all situations. Customary international law has been a system of universalizing in the Rawlsian mode - universalized self-interest. 50 Such a concept of justice is an inversion of another concept of justice - particular justice as the particularization of universal justice - but at least it is universalizing in tendency. It is the justice of capitalism. The future of international society - its survival and progress will not be secured by abandoning even the limited concept of justice contained in customary international law. The International Law Com50. J. RAwIs, A THEORY OF JusTicE (1977). The seminal idea is set out in Rawls, Justice as Fairness, 67 PHIL. REv. 164 (1958).

1988 / State Responsibility mission's draft articles on state responsibility are, like all lawmaking, universalizing in form. They seek to find universally coherent rules covering the whole of the international behavior of states. But they are particularizing in their substance. They are not self-interest universalized but rather self-interest multilateralized - and the interest in question is the interest of governments. They take international law in precisely the opposite direction from that which the survival and progress of international society now demands. All government is a conspiracy. Good government is a conspiracy in favor of the people. Bad government is a conspiracy against the people. The modern government, seduced by Machiavelli and Hume, has made a Faustian bargain with the people under which the government has assumed power over all that science and technology make available and has taken the power over the human mind that modern mass communications make possible. Only law can have power over the government. Justice is conformity with order, the order within us and the order about us, up to and including the order of the universe. Society is a middle kingdom between the individual and the universe. As the instrument of justice, law constitutes a permanent resistance to the forces which tend to the disintegration of society and the depersonalisation of the individual. It has taken a revolutionary effort in national societies to go from government for the state to government for the people. In some cases, the change has not yet been made. In others, the change has been unmade as a usurping state has reemerged from revolution in a newly invigorated form. In others still, re-revolution, even permanent revolution, has been necessary. The change wil9l, t easily be made in international society. But, as in national society, it is inevitable if international society is to survive and progress. It is inevitable, biologically if not historically, that there will be an end to a world in which mass murder and the mass degradation of human beings are treated as the natural products of public policy. Great political change begins and ends in the mind, in feelings and in ideas. International law is trapped in the prerevolutionary world of the eighteenth century, the world made by Vattel, the world before the American and French Revolutions, before Rousseau and Marx. The international law of the old regime is preventing the emergence of the new international society. As governments further extend their Faustian ambitions into international society and international society becomes the main arena for the human struggle to survive and progress, the highest professional duty now rests on international lawyers to exert eternal vigilance on behalf of the people, because lawyers have power over the law, the only thing which can have power over the government. The task of the contemporary international lawyer is to

HarvardInternationalLaw Journal / Vol. 29 redeem governments in the name of justice, which is a sort of love, and in the name of humanity, whose interests transcend the interests of states and governments. The International Law Commission's draft articles on state responsibility may thus be seen as a chapter from the putative constitution of the old international society, a primitive and presocietal society. The manifesto of the new international law of a new international society might, on the contrary, include the following commitments" (1) to acknowledge the peoples of the world as the true subjects of international law, even if the societies known as states continue to be, for the time being, the formal subjects of international law; (2) to accept state practice as the legislative source of the customary form of international law, but state practice in the Grotian spirit, that is, the universal experience of mankind in society; (3) to recognize justice (legal justice, social justice, and justice in its widest sense) as the potentiality of all social endeavor, a potentiality which, in the spirit of the Spanish tradition of international law, the legal system of the international society should seek to make actual; and (4) to establish an independent international law commission, independent of the governments of states, with the following tasks: (a) to articulate an international constitution, including the system of lawmaking and law enforcement; (b) to formulate in the form of a charter the fundamental rights of the peoples of the world and the fundamental duties of governments; (c) to systematize and rationalize the obligations that international law attaches to legal persons, together with the rules of imputation and reparation which flow from them; and (d) to review and propose reform of the laws which justice demands for the survival and the prospering of the international society of the whole human race.