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The International Law Commission's articles on reparations1 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.2
Looking first at the aspect of codification, the articles that restate the law of remedies may help shape the expectations of parties to a dispute, becoming a basis for negotiations when international obligations are breached.3 If a dispute is thereafter submitted to a tribunal, the articles, although general, can still provide some guidance. This feature is significant because, while the number of interstate cases remains relatively small, the percentage in which reparations are sought seems to have grown.4 Among recent cases, the articles, even in draft
form, were cited by several parties and judges at the International Court of Justice5 and the International Tribunal for the Law of the Sea.6 The use and influence of the articles partly reflects the close ties between the International Law Commission (ILC) and the ICJ,7 but may also be linked to the lack of innovation in the rules on reparations; they probably find greater acceptance than if the ILC had moved significantly ahead of state practice.
The greatest relevance and impact of the reparations articles may ultimately lie outside the scope of the project, however. During the articles' lengthy drafting period, the number of multilateral treaties and nonbinding normative instruments grew rapidly, as did the variety of topics they concern. Many new obligations are unilateral or vertical, in the sense that they concern duties owed by states to individuals and legal persons within their territory and jurisdiction; norms governing the commons areas, like instruments on the law...