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Report of the International Law Commission on the work of its fifty-third session
or to the international community as a whole. It can involve relatively minor infringements as well as the most
serious breaches of obligations under peremptory norms
of general international law. Questions of the gravity of
the breach and the peremptory character of the obligation
breached can affect the consequences which arise for the
responsible State and, in certain cases, for other States
also. Certain distinctions between the consequences of
certain breaches are accordingly drawn in Parts Two and
Three of these articles.202 But the regime of State responsibility for breach of an international obligation under Part
One is comprehensive in scope, general in character and
flexible in its application: Part One is thus able to cover
the spectrum of possible situations without any need for
further distinctions between categories of obligation concerned or the category of the breach.
(7) Even fundamental principles of the international legal order are not based on any special source of law or
specific law-making procedure, in contrast with rules of
constitutional character in internal legal systems. In accordance with article 53 of the 1969 Vienna Convention,
a peremptory norm of general international law is one
which is “accepted and recognized by the international
community of States as a whole as a norm from which no
derogation is permitted and which can be modified only
by a subsequent norm of general international law having the same character”. Article 53 recognizes both that
norms of a peremptory character can be created and that
the States have a special role in this regard as par excellence the holders of normative authority on behalf of the
international community. Moreover, obligations imposed
on States by peremptory norms necessarily affect the vital
interests of the international community as a whole and
may entail a stricter regime of responsibility than that applied to other internationally wrongful acts. But this is
an issue belonging to the content of State responsibility.203
So far at least as Part One of the articles is concerned,
there is a unitary regime of State responsibility which is
general in character.
(8) Rather similar considerations apply with respect to
obligations arising under the Charter of the United Nations. Since the Charter is a treaty, the obligations it contains are, from the point of view of their origin, treaty
obligations. The special importance of the Charter, as reflected in its Article 103,204 derives from its express provisions as well as from the virtually universal membership of States in the United Nations.
(9) The general scope of the articles extends not only to
the conventional or other origin of the obligation breached
but also to its subject matter. International awards and
decisions specifying the conditions for the existence of
an internationally wrongful act speak of the breach of an
international obligation without placing any restriction on
202 See Part Three, chapter II and commentary; see also article 48
and commentary.
203 See articles 40 and 41 and commentaries.
204 According to which “[i]n the event of a conflict between the
obligations of the Members of the United Nations under the present
Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail”.
the subject matter of the obligation breached.205 Courts
and tribunals have consistently affirmed the principle that
there is no a priori limit to the subject matters on which
States may assume international obligations. Thus, PCIJ
stated in its first judgment, in the S.S. “Wimbledon” case,
that “the right of entering into international engagements
is an attribute of State sovereignty”.206 That proposition
has often been endorsed.207
(10) In a similar perspective, it has sometimes been
argued that an obligation dealing with a certain subject
matter could only have been breached by conduct of the
same description. That proposition formed the basis of an
objection to the jurisdiction of ICJ in the Oil Platforms
case. It was argued that a treaty of friendship, commerce
and navigation could not in principle have been breached
by conduct involving the use of armed force. The Court
responded in the following terms:
The Treaty of 1955 imposes on each of the Parties various obligations
on a variety of matters. Any action by one of the Parties that is incompatible with those obligations is unlawful, regardless of the means by
which it is brought about. A violation of the rights of one party under
the Treaty by means of the use of force is as unlawful as would be
a violation by administrative decision or by any other means. Matters
relating to the use of force are therefore not per se excluded from the
reach of the Treaty of 1955.208
Thus, the breach by a State of an international obligation
constitutes an internationally wrongful act, whatever the
subject matter or content of the obligation breached, and
whatever description may be given to the non-conforming
conduct.
(11) Article 12 also states that there is a breach of an
international obligation when the act in question is not
in conformity with what is required by that obligation,
“regardless of its … character”. In practice, various classifications of international obligations have been adopted.
For example, a distinction is commonly drawn between
obligations of conduct and obligations of result. That distinction may assist in ascertaining when a breach has occurred. But it is not exclusive,209 and it does not seem to
bear specific or direct consequences as far as the present
articles are concerned. In the Colozza case, for example,
the European Court of Human Rights was concerned with
the trial in absentia of a person who, without actual notice
of his trial, was sentenced to six years’ imprisonment and
was not allowed subsequently to contest his conviction.
205 See, e.g., Factory at Chorzów, Jurisdiction (footnote 34 above);
Factory at Chorzów, Merits (ibid.); and Reparation for Injuries
(footnote 38 above). In these decisions it is stated that “any breach
of an international engagement” entails international responsibility.
See also Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania (footnote 39 above), p. 228.
206 S.S. “Wimbledon” (see footnote 34 above), p. 25.
207 See, e.g., Nottebohm, Second Phase, Judgment, I.C.J. Reports
1955, p. 4, at pp. 20–21; Right of Passage over Indian Territory, Merits,
Judgment, I.C.J. Reports 1960, p. 6, at p. 33; and Military and Paramilitary Activities in and against Nicaragua (footnote 36 above),
p. 131, para. 259.
208 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996, p. 803, at
pp. 811–812, para. 21.
209 Cf. Gabčíkovo-Nagymaros Project (footnote 27 above), p. 77,
para. 135, where the Court referred to the parties having accepted
“obligations of conduct, obligations of performance, and obligations
of result”.