I am struck by the fact that (almost) no States in the mega-claims argue that, as a matter of customary law of State responsibility, reparations cannot result in depriving the population of a State of its means of subsistence. 1/n https://twitter.com/icsid/status/1104064569654288386

2001 ILC Articles do not have such a rule. But the first reading version in 1996 did, in Article 42(3). 2/n

ILC dropped the rule not because it thought, normatively, that depriving population of subsistence was a jolly good thing, but because (Judge) Crawford’s Third Report suggested, empirically, that large compensations were exceptional (egregious/systemic breaches like UNCC). 3/n

The empirical claim was plausible in 2000 but much less so in the world of routine multi-billion awards where no egregious breaches of the UNCC kind exist. And normatively the Eritrea-Ethiopia Claims Commission appeared to use ICESR to get same effect as the 1996 rule 4/n

In light of kitchen-sink approach to defence often used by States, striking that few examples (I know) where technical legal argument put forward. The CME one early case, and the substance is raised regarding ICSID stay of enforcement, e.g. recently in Burlington v Ecuador. 5/n

Widespread, consistent failure of States to invoke favourable defensive argument in litigation is a type of thing that 2018 ILC Conclusions on Custom Conclusion 10(3) has in mind.

Cf. world where every (developing) respondent State for last 20 years raised it in every case. 6/n

Technical legal effect of (non-)practice must be to strengthen/make CIL rule that effects on the State’s population are irrelevant.

I am not making a normative point here that such a rule should exist or that it does exist. I only wonder why States have not argued for it. 7/n

Thoughts on why States (‘ counsel) have not raised the argument:

-Path dependence?
-Collective action problem (will benefit everybody in the end but likely to weaken particular case as a weak argument)?
-Excessive canonisation of 2001 Articles?
-Or have I missed arguments?

8/8

Discussion has moved onwards but, fwiw, this thread did not argue that hypothetical rule exists, should exist, would apply to Conoco, or would be easy to apply.

Sole query is why very sophisticated States have not argued for its existence.