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This article argues that Article 19 of the Draft Convention on State Responsibility, first adopted in 1976, presents a number of substantial problems relating to the definition of crimes of state, the appropriate organ for making decisions on when a crime of state has been committed, and the consequences of such a crime. The International Law Commission, in seeking to adopt a series of articles spelling out the consequences of Article 19 during its 1995 and 1996 sessions, recognized those inherent difficulties. A controversial debate ensued. The purpose of this paper is to set out and clarify the issues involved in this debate so that the question of if and how the concept of 'crimes of state' should be accommodated in the new Draft Articles on State Responsibility may be effectively and conclusively answered.

The essential aim of the Special Rapporteur's Draft Articles for Part HI on the settlement of disputes arising in connection with counter-measures is to ensure that clear restrictions on the taking of counter-measures are agreed and met. This is to be achieved by affording to the States involved in the counter-measures the right to submit any resulting dispute to conciliation or, failing settlement by conciliation, to arbitration, or, failing settlement by arbitration, to the International Court of Justice. The question to be considered in this paper is how the intervention of the Security Council will affect this system for allocating responsibility. For, in principle, the Security Council could either authorize counter-measures or prohibit counter-measures. In either case the question will arise whether such a decision by the Council will be regarded as conclusive of the legality, or illegality, of the measures taken. There is an apparent illogicality in making the right of a State to take counter-measures subject to carefully-formulated conditions, but leaving the Security Council free to authorize institutionalized counter-measures, subject to no such conditions. It is this illogicality which has seemingly worried the Special Rapporteur. The question had, of course, been anticipated in Riphagen's earlier drafts, although not limited to situations of counter-measures and peaceful settlement. Article 4 of Part Two provides as follows

This was an important award because it concerned the implementation of the Treaty of Peace of March 1979 between Israel and Egypt. Israel's obligation to withdraw “behind the international boundary” could not be implemented to the satisfaction of both parties so long as there existed a disagreement over the location of that boundary.The Joint Commission established pursuant to Article IV of the Peace Treaty, a body of military personnel, finally identified some 14 boundary pillars the location of which remained disputed. And, since Article VII of the Peace Treaty required reference to conciliation or arbitration of disputes not resolved by negotiations, the dispute over the location of these boundary pillars was referred to arbitration by the Compromis of 11 September 1986.

There is no novelty in the idea that technology presents a continuing challenge to Society in terms of the decisions which must be taken over the use and control of new developments and, indirectly, to the legal system which must acquire and apply the techniques of control desired by Society. However, there is novelty in the sheer pace at which technology is presenting this challenge to international society in relation to the exploitation of the resources of the sea. Within little more than a decade after the great U.N. Geneva Conferences on the Law of the Sea of 1958 and 1960—which introduced substantial codification—a general demand for revision of the law has led to plans for a new Conference on the Law of the Sea in 1973. The scope of the proposed conference is extremely wide and it is the purpose of this article to examine only one of the proposed topics, namely, the “international sea-bed area.” This is a topic which is currently exciting interest throughout the world, in Parliaments, Foreign Offices, Universities, learned societies, conferences, oil companies and even the popular press (the order does not indicate a hierarchy of influence). Behind this interest there lies, of course, money and—possibly a countervailing pressure—the increasing concern with the protection of the maritime environment in addition to the normal considerations of prestige, military security and national interest which condition any State's approach to questions of maritime jurisdiction. In order to appreciate the extent of this interest some brief mention should be made of the resources currently estimated to lie in or on the sea-bed outside national jurisdiction.