This Note provides a critical analysis of the United Nations International Law Commission’s treatment of the legal interest in the Draft Articles on Responsibility of States for Internationally Wrongful Acts (Articles). It focuses on two decisions that the International Law Commission (ILC) made during the drafting process: 1) the decision to use a narrow definition of “injured state,” excluding states that suffer a breach of an obligation owed to them solely as members of the international community; and 2) the decision to replace a provision recognizing and regulating the practice of collective countermeasures with a savings clause that provides no guidance for the use of collective countermeasures, leaving the legality of such actions uncertain.
This Note argues that, although the ILC was correct to weigh the risks of allowing states broad discretion to act in the name of collective interests, the development of the law of state responsibility would have been better served had the ILC taken a more progressive approach to recognizing the interests of the international community in enforcing state responsibility. First, the ILC should have more broadly defined “injured state” to include states that suffer a breach of an obligation owed to them solely as members of the international community, but should also have limited the types of actions such states would be permitted to take in response to a breach. Second, the ILC should have adopted Special Rapporteur James Crawford’s proposal that the Articles specifically allow and regulate the practice of collective countermeasures in response to a gross and well-attested breach of certain fundamental obligations. This approach strikes a better balance between the potential value of collective countermeasures as a tool to help those without direct access to the international legal system and the risk that collective countermeasures will be abused by powerful states seeking to further their own interests.
