00182905

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コクレン コクサイ ホウ イインカイ ニオケル コッカ ノ コクサイ ハンザイ ガイネン ノ トリアツカイ ニツイテ クロフォード ダイイチ ホウコクショ オ メグル ギロン オ チュウシン ニ

Who Killed Article 19? : Or Other Different Categories of violations of International Law

国際協力論集

7(1)

143-163

神戸大学大学院国際協力研究科

1999-06

2007-05-23

In his First Report on State Responsibility in 1998， James Crawford， Special Rapporteur， has recommended to the International Law Commission (ILC) that Art. 19 on the Draft Articles on State Responsibility should be deleted. This proposal， in fact， means that the ILC should give up one of the most impressive approaches which it has ever adopted: the distinction between international crimes of States and international delicts. As a result， it has raised some serious and complicated conflicts inside the ILC again. Some members have objected strongly to this proposal and contended to maintain Art. 19， and others have supported Special Rapporteur and claimed to abandan the term ‘crime' ， which might recall a criminal connotation in the sense of domestic law. In spite of those deep disagreements， there are still some views which may be widely shared among the members. Thus， Special Rapporteur has presented a compromise proposal， which contains the followings : 1. The ILC should proceed with its second reading of the Draft Articles on the State Responsibility on the basis that the field of State responsibility is neither “criminal" nor “civil”, and that Draft Articles cover the whole field of internationally wrongful acts. 2. On the basis， the Draft Articles should not seek to address the issue of the possible criminal liability of States ， or the substantive penalties or procedural mechanisms that any such liability would entail. 3. The Draft Articles need fully to reflect the consequences within the field of State responsibility of the basic principle that certain international obligations are essential， are non-derogable (jus cogens) and are owed not to individual States but to the international community as a whole (erga omnes). 4.In the course of the second reading the ILC will ， in place of Art. 19， seek systematically to take account of serious breaches of the obligations referred to in para. 3 above. 5. Consideration would be given to a suitable savings clause， making it clear that the Draft Articles are without prejudice to the existence or non-existence of “international crimes of States". The investigation into this matter is now under way on the basis of this proposal， but the debate in the ILC. seems to show little possibility that Art. 19 should be retain as such， due to the premature of “international crimes of States"ー this concept is still too unclear on its definition， legal consequences and implementation for States to accept in reality. However， on the other hand， intemational community surely has recognized some primary rules as peremptory norms， and some rights/obligations as ones with the character erga omnes. In view of the acceptance of the public interests for the international community as a whole， the codification on the field of State responsibility should reflect such development of those legal concepts by introducing the different categories of the violations of international law into a general regime on State Responsibility. The ILC' s work is expected to proceed steadily and from the viewpoint of the progress of international law and of the development of international community， in order to reconsider some issues: domestic analogies，“ fault" and “damage" as the criteria for differentiating the violations of international law， the relationship between individual criminal responsibility (intemationa1 crimes of individuals) and State responsibility， etc. The establishment of other different categories of violations of international law and the deletion of Art. 19 from the Draft Articles on State Responsibility should be regarded not as “backward”, but as the adaptation of some legal concepts both to the progressive codification of international law and to the reality of international community.

紀要論文