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The forthcoming discussion in the International Law Commission on the Draft Articles on State Responsibility may well lead to the removal of Articles 51-53, dealing with the consequences of international crimes. If this occurs, there will remain the question of what to do with two other references to international crimes included in the Draft Articles. Article 40(3) says that if the wrongdoing state commits a crime, 'all other States' are to be considered injured states. The definition of injured states should thus be widened, because all other states must be considered as injured when any erga omnes obligation is infringed, whether or not the violation constitutes an international crime. This is not to say that the consequences of violations of erga omnes obligations are necessarily the same of those of wrongful acts that do not affect any interest of the international community. Article 19 would be clearly deprived of meaning if Part Two of the Draft Articles failed to specify any consequence for international crimes. However, if Article 19 were simply removed, the inference would be that there exists no special regime for wrongful acts that seriously affect the interests of international society. A saving clause could be usefully included in the Draft Articles to the effect that they are without prejudice to any regime that may be established in the future to deal with serious infringements of obligations.

Should all references to international crimes disappear from the ILC Draft Articles on State Responsibility?