The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading 2. An Overview of the Key Issues The comments made by governments on the provisional text suggested that, overall, its basic structure and most of its individual provisions were acceptable. This included many of the articles first proposed and adopted in 2000. For example, the distinction between the secondary obligations of the responsible State and the right of other States to invoke that responsibility was widely endorsed. Likewise the distinction in principle between "injured States" and other States with a legal interest in the obligation breached received general support, even if the formulation of certain articles was thought to require further attention. The same applied for articles omitted from the first reading text:11 there were few calls for their reinsertion, even for former article 19 dealing with "international crimes" of States.12 However a number of substantive issues remained unresolved, including: The definition of "damage" and "injury" and its role in the Articles, in conjunction with the articles specifying the States entitled to invoke responsibility; The retention of Part Two, Chapter III dealing with the consequences of "serious breaches" of certain obligations, and possible changes to it; Whether a separate chapter dealing with countermeasures was necessary or whether it was sufficient to expand the treatment of countermeasures as a circumstance precluding wrongfulness in Chapter V of Part One; If a separate chapter on countermeasures was to be retained, what changes were required to the three controversial articles concerning obligations not subject to countermeasures, procedural conditions on resort to countermeasures and countermeasures by States other than the injured State (articles {51}, {53}, {54}). In addition, the LaGrand case13 decided by the International Court of Justice during the course of the Commission's fifty-third session, raised the question of assurances and guarantees of non-repetition as a central issue, necessitating a review of the principle of cessation and related articles in Part Two. Two general issues also remained for consideration. They were (a) dispute resolution, which was the subject of Part Three adopted on first reading;14 and (b) the eventual form of the Articles. The two were closely related: only if the Articles were envisaged as an international convention that there was any scope for a Part dealing with third-party settlement of disputes. 11 The following first reading articles have been omitted altogether or have no direct equivalent on second reading: articles [2], [11], [13], [18 (3)-(5)], [19], [20], [21], [26] and [51]. 12 See Topical Summary ... (A/CN.4/513), paras. 89-91. 13 LaGrand (Germany v. United States of America), Merits, judgment of 27 June 2001. 14 This part was set to one side by the ILC in 2000, pending a decision on the eventual form of the draft articles (Report 85 2000 (A/55/10), para. 69).
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