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From Bilateralism to Community InterestEssays in Honour of Bruno Simma$
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Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Vedder

Print publication date: 2011

Print ISBN-13: 9780199588817

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199588817.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 21 November 2019

Responsibility for Breaches of Communitarian Norms: an Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts

Responsibility for Breaches of Communitarian Norms: an Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts

Chapter:
(p.224) Responsibility for Breaches of Communitarian Norms: an Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts
Source:
From Bilateralism to Community Interest
Author(s):

James Crawford (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588817.003.0017

Nowadays it seems that international law develops more rapidly than international society does, seeking to serve as a tractor rather than a trailer, reversing Cicero's scheme of society and law. But where this happens, the developments may be fragile and called into question. A good illustration of this proposition can be seen in the debate as to the existence in international law of communitarian norms entailing obligations erga omnes, a debate carried on almost entirely in the abstract, with little or no reference to earlier instances of international adjudication or State practice. The idea was reflected, in the Draft Articles on State Responsibility adopted by the International Law Commission (ILC) on first reading in 1996, in two unwieldy provisions, draft Article 19 (dealing with ‘international crimes of States’) and draft Article 40 (defining the ‘injured State’ to include, in the case of State crimes and in certain other cases, all States). On second reading, these proposals were radically changed. Draft Article 19 disappeared, being replaced by Articles 40 and 41 (dealing with consequences of serious breaches of peremptory norms). Draft Article 40 was transfigured, emerging as Articles 42 and 48 (distinguishing between the ‘injured State’ and other States entitled to invoke responsibility even though not individually injured by the breach). This chapter focuses on Article 48 and the accompanying notion of invocation of responsibility in the public interest.

Keywords:   international law, responsibility, public interest, International Law Commission, international crimes

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