The International Law Commission’s articles on reparations restate the existing law on remedies, but they also innovate in significant ways to reinforce broader community interests in international legality. Given the dearth of precedents on reparations, both aspects can be helpful to tribunals and parties engaged in traditional interstate litigation, but the progressive elements, if they are accepted by states, could have wider application in supporting mechanisms to enhance implementation and observance of international obligations. The combination of codification and progressive development, however, is sometimes an uneasy fit and leaves unanswered several important questions about the theoretical foundation and practical application of the law of reparations. Even the seeming clarity of the articles is deceptive because some of the concepts included in the broadly drafted provisions can be difficult to apply in practice.
Type Symposium: The ILC’s State Responsibility Articles Information American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 833 - 856 Copyright © American Society of International Law 2002Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
1 Draft Articles on Responsibility of States for Internationally Wrongful Acts, pt. 2, Arts. 28-41, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at , reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002). References to, and quotations of, the articles, as well as the official ILC commentaries to the articles, which appear in the Commission’s Fifty-third Report and Crawford’s volume, supra, will be identified below by article and paragraph number.
2 See, for example, the discussion of continuing violations, in text at notes 38-47 infra. The general statement of obligation to make Reparation for harm caused masks many difficult legal issues that probably could not be adequately answered by a single set of articles, because the principles are intended to apply to every breach of an international obligation regardless of the source of the obligation or nature of the breach. Left vague are the answers to questions such as what is injury? what are the required causal links to require Reparation for asserted injury? when can compensation substitute for restitution? The commentary adds needed detail; the commentary to Article 36, discussed in text at notes 123,126-33 infra, is especially helpful in providing a lengthy review of judicial practice assessing compensation for injury.
3 Most interstate disputes are resolved by direct negotiations between the disputing parties. José , E. Alvarez , The New Dispute Settlers: (Half) Truths and Consequences , 38 Tex. Int’l L.J . (forthcoming 2003 )Google Scholar (manuscript at 12-13, on file with author). Many interstate disputes, of course, do not involve claims for Reparations. In some cases the parties seek only to determine the applicable law, which may be so unclear as to be disputable. In the North Sea Continental Shelf cases, for example, the parties did not ask for delimitation of boundaries, but for the applicable principles and rules to be applied by them. North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Feb. 20); see Robert , Y. Jennings , The Proper Work and Purposes of the International Court of Justice , in The International Court of Justice 33 - 45 ( Muller , A. S. et al. eds., 1997 )Google Scholar . According to Christine Gray, about one third of the cases at the Permanent Court of International Justice (PCIJ) involved a claim for damages. Christine , D. Gray , Judicial remedies in International Law 77 ( Paperbacks , Clarendon 1990 ) ( 1987 )Google Scholar .
4 Recent cases at the International Court of Justice (ICJ) asking for Reparations include LaGrand (Ger. v. U.S.), Fisheries Jurisdiction (Spain v. Can.), Armed Activities on the Territory of the Congo (Congo v. Uganda; Congo v. Rwanda; Congo v. Burundi), Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.), Aerial Incident of 10 August 1999 (Pak. v. India), Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Aerial Incident of 3 July 1988 (Iran v. U.S.), Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), and Arrest Warrant of 11 April 2000 (Congo v. Belg.). The applications, memorials, and judgments are available online at .
5 See, e.g., Memorial of Germany (LaGrand Case) 241 (Sept. 16,1999) (calling the ILC draft articles on responsibility “the most authoritative statement of customary international law on the matter”).
6 In M/V “Saiga” (No. 2) (St. Vincent & the Grenadines v. Guinea), para. 171 (July 1, 1999), 38 ILM 1323, 1357 (1999), available at , the International Tribunal for the Law of the Sea cited the draft articles in stating that” [r]eparation may be in the form of ‘restitution in kind, compensation, satisfaction and assurances and guarantees of non-Repetition either singly or in combination’ (article 42, paragraph 1, of the Draft Articles of the International Law Commission on State Responsibility).”
7 On the cross-fertilization of ideas on state responsibility between the ILC and the ICJ, see generally Rosenstock , Robert & Kaplan , Margo , The Fifty-third Session of the International Law Commission , 9 & AJIL 412 , 414 - 15 ( 2002 )Google Scholar .
8 The ICJ has indicated that the basic principle of Reparation articulated in the Chorzów Factory case applies to Reparation for injury to individuals, even when a specific jurisdictional provision on Reparation is contained in the statute of the tribunal. Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, 1973 ICJ Rep. 166, 197-98 (July 12) (citing Factory at Chorzow (Ger. v. Pol.), Indemnity, 1928 PCIJ (ser. A) No. 17 (Sept. 13) [hereinafter Chorzow Factory, Indemnity]).
9 For a critique of current international practice in the field of human rights, see Shelton , Dinah , Remedies in International Human Rights Law ( 1999 )Google Scholar .
10 The article setting forth the general principle is a restatement of the Chorzów) Factory declaration quoted in text at note 13 infra.
11 The Chorzów Factory Judgment may have drawn upon the decision of Judge Max Huber in British Claims in the Spanish Zone of Morocco (Spain v. UK), where he characterized international responsibility as being the corollary of a right and entailing the duty to make Reparations when engaged. 2 R.I.A.A. 615, 641 (1925).
12 Chorzów Factory, Indemnity, supra note 8, at 47. The case arose from the expropriation of a factory by Poland, which the Court held was in violation of the German-Polish Convention Concerning Upper Silesia of May 15, 1922. The Court distinguished an unlawful expropriation from a lawful taking and held that the measure of damages for the unlawful taking was the value of the undertaking at the time of indemnification plus any losses sustained as a result of the expropriation, including lost profits. In the case of a lawful taking, payment of fair compensation (the value of the property at the time of the taking plus interest to the date of payment) would be adequate to avoid a wrongful act.
13 Chorzów Factory (Ger. v. Pol.), Jurisdiction, 1927 PCIJ (ser. A) No. 9, at 21 (July 26), reaffirmed in Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Rep. 174, para. 184 (Apr. 11).
14 Chorzów Factory, Indemnity, supra note 8, at 29 (“ [I] t is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make Reparation.”). According to Fitzmaurice,” [T] he notion of international responsibility would be devoid of content if it did not involve a liability to ‘make Reparation in an adequate form’.” 1 Gerald Fitzmaurice, The Law and Procedure of The International Court of Justice 6 (1986).
15 LaGrand Case (Ger. v. U.S.), Merits, para. 48 (Int’l Ct. Justice June 27, 2001), 40 ILM 1069, 1082 (2001) (citing Chorzów Factory, Jurisdiction, supra note 13, at 22). The inherent power of the Court to award Reparations was also affirmed in, inter alia, Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986ICJ Rep. 14,142 (June 27); and Fisheries Jurisdiction (FRG v. Ice.), Merits, 1974 ICJ Rep. 175, 203-05, paras. 71-76 (July 24). Brownlie notes that the presumed power of the Court to award damages has gone unquestioned. Brownlie , Ian , Remedies in the International Court of Justice , in Fifty Years of the International. Court of Justice 557 , 558 ( Lowe , Vaughan & Fitzmaurice , Malgosia eds., 1996 )CrossRefGoogle Scholar [hereinafter Fifty Years of ICJ].
16 In the Chorzów Factory case, the Court found that its jurisdiction extends to method of payment, beneficiaries, and other aspects of Reparation. Chorzów Factory, Jurisdiction, supra note 8, at 61-62. Later, in the Corfu Channel case, the ICJ decided that it had competence to assess the actual amount of damages due in any case where it had competence to say that there was a duty to pay compensation. Corfu Channel Case (UK v. Alb.), Merits, 1949 ICJ Rep. 4, 23-24 (Apr. 9). The Court relied on the principle of effectiveness in finding that it was required to set the amount. “If, however, the Court should limit itself to saying that there is a duty to pay compensation without deciding what amount of compensation is due, the dispute would not be finally decided. An important part of it would remain unsettled.” Id. at 26; see also Loayza Tamayo, Reparations, Inter-Am. Ct. Hum. Rts. (ser. C) No. 42, para. 86 (1998), available at .
17 See, e.g., Loayza Tamayo, supra note 16, paras. 155-58. In the Loayza Tamayo case, the Court invoked the principle of proportionality to determine the scope of Reparations, while in the earlier Velásquez Rodríguez case, it applied principles of equity to determine indemnification for nonmonetary harm. Velasquez Rodriguez, Compensatory Damages, Inter-Am. Ct. Hum. Rts. (ser. C) No. 7, para. 27 (1989). In both cases, the Court denied some Reparations claims of the applicants.
18 See LaGrand Case, supra note 15, para. 48; M/V “Saiga,” supra note 6, para. 170; Papamichalopoulos v. Greece, 330-B Eur. Ct. H.R. (ser. A) para. 36 (1995); Tippetts, Abbett, McCarthy, Stratton v. TAMS-AFFA Consulting Engineers of Iran, 6 Iran-U.S. CI. Trib. Rep. 219, 225 (1984). The Inter-American Court has Repeatedly stated that Article 63 (1) of the American Convention on Human Rights, concerning Reparations, articulates general international law, citing Chorzów Factory, Jurisdiction and Indemnity, supra notes 13, 8. Velásquez Rodríguez, supra note 17, paras. 25-26, 30-31.
19 Recent examples at the ICJ include the LaGrand Case, supra note 15, and Arrest Warrant of 11 April 2000 (Congo v. Belg.) (Int’l Ct. Justice Feb. 14, 2002), 41 ILM 536 (2002) [hereinafter Arrest Warrant]. In both instances, the applicants sought cessation of the breach and guarantees of nonrepetition.
20 For an overview of human rights cases where applicants requested declaratory judgments but no damages, see Shelton, supra note 9, at 201-02, 211, 218-19. Human rights law is a source of extensive and useful jurisprudence on Reparations, but it is not always clear whether the tribunals are applying lex specialis (based on provisions in their constituting treaties) or the international rules on state responsibility. See, in particular, the practice of the European Court of Human Rights, discussed in Shelton, supra note 9. The articles contain a “savings clause” that indicates that interstate Reparations are without prejudice to Reparations that may be owed to individuals, intergovernmental organizations, or other nonstate entities. Art. 33(2). Human rights obligations are the major category where individuals are the ultimate beneficiaries and rights holders, but other rights may be created by treaty, such as the consular rights at issue in the LaGrand Case, supra note 15, paras. 77-78.
21 In the Barcelona Traction case, the ICJ referred to the “various arrangements made in respect of compensation for the nationalization of foreign property,” noting that” [s]pecific agreements have been reached to meet specific situations, and the terms have varied from case to case. Far from evidencing any norm as to the classes of beneficiaries of compensation, such arrangements are sui generis and provide no guide in the present case.” Barcelona Traction, Light & Power Co., Ltd. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3, 40, para. 61 (Feb. 5) [hereinafter Barcelona Traction].
22 See generally Burying The Past: Making Peace and Doing Justice After Civil Conflict ( Bigger , Nigel ed., 2001 )Google Scholar ; Restorative Justice and Civil Society ( Strang , Heather & Braithwaite , John eds., 2001 )Google Scholar ; Johnstone , Gerry , Restorative Justice: Ideas, Values, Debates ( 2002 )Google Scholar ; Daniel , W. Van Ness & Karen Heetderks Strong, Restoring Justice ( 2002 )Google Scholar .
23 Widespread objections to the notion of state crimes led to deletion of the concept from the articles. Contrast the treatment of assurances and guarantees of nonrepetition. The topic was controversial, although assurances and guarantees have been utilized as a form of satisfaction in the past. Clyde Eagleton, the Responsibility of States 184-89 (1928). In 2000 the ILC joined its text on assurances and guarantees to the provision on cessation. Germany relied upon the ILC draft to ask for guarantees in the LaGrand case. The Court held it had jurisdiction over the issue but did not discuss the legal basis for insisting on assurances and guarantees. Subsequently, the ILC “was divided as to the interpretation of the Court’s judgment and its significance for the role of assurances and guarantees of non-Repetition in the articles.” Crawford, supra note 1, at 33. Some thought it significant that the Court did not take a clear position on the existence of an obligation to provide such assurances, let alone speak of them as satisfaction or another aspect of Reparation. Others felt that the Court had supported the ILC draft. According to the rapporteur, however, “[g]overnments have consistently supported their inclusion in Part Two, as well as their placement in article [30].” Id. The text was therefore retained.
24 Given the general lack of precedent and doctrine on Reparations, there is some risk that the articles will “freeze” the law in its present state and the hierarchy of Reparations the articles establish will be applied mechanically. This risk may not be great, however, in view of the flexibility drafted into the articles themselves, the generality with which they are formulated, and the likelihood of ongoing debate about the issue.
25 The articles articulate all the rules in part 2 in terms of obligations of the responsible state, rather than as rights of the injured party to obtain Reparation. This change was made in 1999 after the first reading, in part because it was believed that approaching Reparation as a right rather than a duty tended to exclude aspects of Reparation such as declaratory relief and also seemed to suggest that the appropriate form of Reparation is predetermined by international law, instead of being a matter of some flexibility. See James Crawford, Third Report on State Responsibility, UN Doc. A/CN.4/507, at 4-6, 12-13 (2000) [hereinafter Crawford, Third Report]. The shift to obligations also serves to reinforce the concern to restore and maintain the rule of law.
26 Examples of lex specialis on remedies include the Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 354 (1999); and the noncompliance procedures established pursuant to the Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 1522 UNTS 293.
27 The original work on the topic focused on state responsibility for injuries to the persons or property of aliens, a matter of dispute between the responsible state and the state of the injured alien. See the six Reports of Special Rapporteur F. V. García-Amador, presented between 1956 and 1961, in [1956] 2 Y.B. Int’l L. Comm’n 173, UN Doc. A/CN.4/SER.A/1956/Add.1; [1957] 2 Y.B. Int’l L. Comm’n 104, UN Doc. A/CN.4/SER.A/1957/Add.1; [1958] 2Y.B. Int’l L. Comm’n 47, UN Doc. A/CN.4/SER.A/1958/Add.1; [1959] 2 Y.B. Int’l L. Comm’n 1, UN Doc. A/CN.4/SER.A/1959/Add.1; [1960] 2 Y.B. Int’l L. Comm’n 41, UN Doc. A/CN.4/SER.A/1960/Add.1; [1961] 2 Y.B. Int’l L. Comm’n 1, UN Doc. A/CN.4/SER.A/1961/Add.1.
28 In theory, compensation or other remedial action is not a sanction, being corrective of an unjust imbalance created by the wrongful act. In taking any gain from the wrongdoer and restoring it to the injured party, both parties are restored to the positions they held before the wrongful act occurred. See Shelton, supra note 9, ch. 2 (“Theories of Remedies”).
29 The role of equity appeared in the Meuse case. In his individual opinion, Judge Hudson quoted the applicable Reparations language from Chorzów Factory, and then added: “Yet, in a particular case in which it is asked to enforce the obligation to make Reparation, a court of international law cannot ignore special circumstances which may call for the consideration of equitable principles.” Diversion of Water from the River Meuse, 1937 PCIJ (ser. A/B) No. 70, at 78 (June 28). The Court refused to decree specific performance of an obligation the applicant itself was not performing. On the role of equity in the resolution of disputes at the ICJ, see Weil , Prosper , L’équité dans la jurisprudence de la Cour internationale de Justice , in Fifty Years of ICJ , supra note 15, at 121 Google Scholar .
30 Part 2 is entitled “Content of the International Responsibility of a State” and Article 28 specifies that an internationally wrongful act entails legal consequences for the responsible state.
31 The six articles in chapter I address the fact that an internationally wrongful act entails legal consequences (Art. 28); the responsible state’s duty to perform the obligation breached (Art. 29); the duty to cease a continuing wrong and provide guarantees of nonrepetition, if appropriate (Art. 30); the duty of full Reparation for injury caused (Art. 31); the irrelevance of internal law to Reparations (Art. 32); and the scope of the obligations as owed to one or more states or to the international community as a whole (Art. 33).
32 Commentary to pt. 2, ch. I, General Principles, para. 1.
33 One reason why cessation may have been seen as a form of Reparation is that it is often indistinguishable from restitution. For example, where individuals are wrongfully detained, cessation as well as restitution can be accomplished only by restoring the liberty of the detained persons. See, e.g., United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24); Loayza Tamayo, supra note 16.
34 The Vienna Convention on the Law of Treaties allows an injured state the option of terminating a treaty for material breach, but does not automatically void an agreement as a consequence of a breach or Repudiation. Vienna Convention on the Law of Treaties, opened for signature May23, 1969,Art.60,1155 UNTS 331. See also the Gabčíkovo-Nagymaros Project case, where the ICJ held that the bilateral agreement remained in force, despite continuing material breaches by both sides. Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 7,68, para. 114 (Sept. 25). While states may agree that some treaties will terminate upon breach, the articles see this as a matter regulated by the relevant primary obligation, not by the law of state responsibility.
35 The commentary indicates that the term “continuing” is intended to encompass situations where a state has Repeatedly violated an obligation, implying the possibility of further Repetitions. Commentaries, Art. 30, para. 3. Such a situation would seem, strictly speaking, to fall more within the second paragraph on the need for guarantees of nonrepetition than to be an act of a continuing character. If the violation is not occurring at a particular time, there is no wrongful conduct that must cease.
36 In the Rainbow Warrior arbitration, reference is made to the inherent authority of a tribunal to issue an order for the cessation in the face of a continuing breach. Rainbow Warrior (N.Z./Fr.), 20 R.I.A.A. 217, 270 (1990).
37 Commentaries, Art. 30, para. 5.
39 A continuing violation is defined in Article 14(2) as one that “extends over the entire period during which the act continues and remains not in conformity with the international obligation.” This is distinct from a wrongful act that merely has consequences or effects that extend in time.
40 Arrest Warrant, supra note 19.
41 Similarly, the German application in the LaGrand case asked that the criminal conviction obtained after the breach be declared “void” and the previolation status of the convicted German national be restored. This claim was not maintained in the final submissions, the government instead demanding guarantees of nonrepetition. Restitution therefore was not in issue.
42 Arrest Warrant, supra note 19, para. 74.
43 The Court calls its findings of international responsibility a form of satisfaction “to make good the moral injury complained of by the Congo.” Id., para. 75.
45 Id., Joint Separate Opinion of Judges Higgins, Kooijmans, & Buergenthal, para. 89 (citing Article 30 of the ILC articles on state responsibility).
46 Restitution posed practical problems similar to those identified in the Rainbow Warrior case, supra note 30, where the adjudicator refused to order a return to the status quo ante. The French breached an obligation to detain the individuals who committed the wrongful act on an island for a period of time. The time for detention had expired by the time the case was heard. The award found no continuing obligation to detain because the time limit had expired. An obligation to return (restitution) was deemed not a significant remedy if the individuals were not to be detained once returned. Commentaries, Art. 30, para. 8. In this and similar cases where the obligation breached no longer exists, a return to the status quo ante may be of little or no value. Belgium could issue another arrest warrant for the individual who no longer holds office.
47 Commentaries, Art. 14, para. 1.
48 The articles do not identify any peremptory norms, although the commentary gives as examples the prohibitions of aggression, slavery and the slave trade, genocide, racial discrimination, and apartheid. The commentary to Article 40, in paragraph 4, cites their prohibition in “widely ratified international treaties and conventions admitting of no exception” despite the permissibility of reservations to and denunciations of the treaties cited. The commentary, in paragraph 5, also cites the prohibition of torture and the basic rules of international humanitarian law applicable in armed conflict, and mentions the obligation to respect the right of self-determination.
49 The commentary indicates that “gross” refers to the intensity of the violation or its effects, meaning flagrant violations. A “systematic” violation is one carried out in an organized and deliberate way. Commentaries, Art. 40, para. 8. No procedures are indicated for determining when such a breach has occurred.
50 See [1976] 2 Y.B. Int’l L. Comm’n, pt. 2, at 95-122, UN Doc. A/CN.4/SER.A/1976/Add.1 (Part 2); Report of the International Law Commission on the Work of Its Fiftieth Session, UN GAOR, 53d Sess., Supp. No. 10, at 64-69, paras. 241-77, UN Doc. A/53/10 (1998) [hereinafter ILC 50th Report]. The commentary finds no support in practice for the concept of state crimes. Commentaries, ch. III, paras. 5-7. The Third Report on State Responsibility noted that the articles on international state crimes had been widely criticized as inadequate and poorly integrated into the text. Crawford, Third Report, supra note 25, at 7 (citing ILC 50th Report, supra, at 135-37, paras. 298-301).
51 The obligation not to recognize the consequences of a serious breach of a peremptory norm and not to aid the violating state appeared in earlier Reports as consequences of the commission of a crime. Gaetano Arangio-Ruiz, Sixth Report on State Responsibility, [1994] 2 Y.B. Int’l L. Comm’n 20, UN Doc. A/CN.4/SER.A/1994/Add.1.
52 The commentary notes that the issue of hierarchy of norms has been much debated, but finds support for the distinctions made in Articles 40 and 41 in the notion of erga omnes obligations and the inclusion of the concept of peremptory norms in the Vienna Convention on the Law of Treaties, supra note 34, Arts. 53, 64. On erga omnes obligations, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn.-Herz. v. Yugo.), Preliminary Objections, 1996ICJ Rep. 595,616, para. 31 (July 11); East Timor (Port. v. Austl.), 1995 ICJ Rep. 90,102, para. 29 (June 30); Barcelona Traction, supra note 21, at 32. Distinctions are rightly drawn between the concept of fundamental or peremptory norms and obligations erga omnes, which are not necessarily peremptory in character. Erga omnes obligations focus on the legal interest of all states in compliance with such norms, while peremptory norms are alleged to have normative priority over other obligations. Confusion may have arisen because the Barcelona Tracrtion Judgment seems to suggest that the reason all states may have a legal interest in compliance with obligations erga omnes is “the importance of the rights involved.” Id. Moreover, the examples the Court cites—outlawing acts of aggression and genocide, providing protection from slavery and racial discrimination— are usually asserted as peremptory norms as well as obligations erga omnes.
53 The U.S. comments to the articles question the inclusion of this category of breaches and especially the distinction between breaches and serious breaches. Draft Articles on State Responsibility: Comments of the Government of the United States of America (Mar. 1, 2001) (on file with author), excerpted in Sean , D. Murphy , Contemporary Practice of the United States , 95 AJIL 626 ( 2001 )Google Scholar .
54 See, e.g., Christos , L. Rozakis , The Concept of Jus Cogens in the Law of Treaties ( 1976 )Google Scholar ; Suy , Eric , The Concept of Jus Cogens in Public International Law , in 2 Carnegie Endowment for International Peace, Papers and Proceedings, The Concept of Jus Cogens in International Law 17 ( 1976 )Google Scholar ; Verdross , Alfred , Jus Dispositivum and Jus Cogens in International Law, 60 AJIL 55 ( 1966 )Google Scholar . For critiques of the concept of jus cogens, see Anthony D’Amato, It’s a Bird, It’s a Plane, It’s Jus Cogens!6 Conn. J. Int’l L. 1 (1990); Weil , Prosper , Towards Relative Normativity in International Law ? 77 AJIL 413 ( 1983 )Google Scholar .
55 Commentaries, Art. 40, para. 2.