The "Injured State" in the International Law of State Responsibility

Abstract

The International Law Commission of the United Nations has been tackling the problem of State responsibility since 1955. Nearly half a century has passed, the study of State responsibility at the ILC seems to be reaching its final stage, and it is expected that the second reading of the draft articles will be finalized in the year 2001. The on-going codification of the law of State responsibility is a unique project in the history of the ILC in the sense that it intends to codify "secondary rules" of international law. The notion of secondary rule in international law may have at least three different meanings according to different references. According to one author, procedural rules, as opposed to substantial rules, constitute secondary rules in terms of their content.[ Another author makes use of the concept of "secondary rule" in terms of the timing of the application of the rule.2 In this sense, the secondary rule is applied after some other (primary) rules have already been applied. One can also assert that the secondary rule is a "rule for rule" or "meta-rule" in terms of a vertical relationship with another rule. Although it must be noted that the draft articles on State responsibility do contain secondary rules in the three senses of the term, Draft Article 40, entitled "Meaning of injured State", seems to constitute a secondary rule as defined in the third interpretation above, in as much as it does not purport to impose any concrete obligations, or confer any concrete rights, substantial or procedural, on States. According fo the ILC, if it is established that an internationally wrongful act is committed