State Responsibility

• Author: John H. Currie
• Pages: 533-573

533

CHA PTER 12

STATE RESPONSIBILITY

A. GENERAL PRINCIPLES

1) Concept and Development of State Responsibility

In intern ational law, state responsibility is an area of general applica-

tion, meaning that it is of potential relevance in virtually all substan-

tive international legal contexts. Broadly speaking, the topic governs

the legal consequences of a state’s breach of its international legal obli-

gations. It may t herefore be useful to think of state responsibility as

akin to the legal principles of liability for wrongful acts found in most

domestic legal systems. It is al so the international equivalent of a law

of remedies.1

Some authors and jurists prefer to think in term s of a body of “sec-

ondary” legal obligations that arise only upon breach of “primary” obli-

gations. The latter would be substantive legal obligations (such as the

duty to perform a treaty undertaking in good faith, to refrain from the

use of force contrary to the UN Charter, or to respect the freedom of the

high seas) whereas the former would be legal obligations (such as the

duty to make reparations) that only arise for any particular state when

it has breached a primary obligation. Of course, breach of a secondary

1 See, generally, J.G. Starke & I.A. She arer, Starke’s International Law, 11th ed.

(London: Butterwort hs, 1994) at 264.

PUBLIC INTERNATIONA L LAW534

obligation may in turn generate yet further secondary obligations or

consequences.

While analogies between state responsibility and domestic princi-

ples of liability and remedies may be useful in a general sense, caution

is required before presuming too great a correlation. This is because the

principles of state responsibility are relatively rudimentary when com-

pared to the much more sophisticated conceptions of liability found in

most domestic systems. For example, state responsibility draws no clear

distinctions between the legal consequences that f‌low from breaches of

different types of primary obligation. For example, breaches of treaty

obligations, arguably “contractual” in character, are in principle treated

no differently in terms of state responsibility than breaches of custom-

ary obligations, arguably “tortious” in nature.2 Nor is t her e eve n a cl ear ly

developed distinction between the consequences for states of criminal

behaviour and lesser, “delictual” forms of wrongdoing.3

This lack of sophistication can be understood by considering the

relatively recent development of a general theory of state responsibility.

European states have long engaged in the practice of making repara-

tions inter se, usually pursuant to treaty undertak ings. The practice of

paying compensation for personal or property damages suffered by for-

eign nationals also developed relatively early. Outside these contexts,

however, a state suffering some wrong by another state had until fairly

recently to rely on a number of self-help remedies, such as direct repris-

als, or authorizing one’s nationals to carry out reprisals against nation-

als of the offending state.4

Obviously such a crude system of enforcement is undesirable if the

goal is to establi sh a mature legal system based on conceptions of the

rule of law rather than the use of force. However, a tension arises be-

tween the interests of individual states, for whom the development of

a law of secondary obligations further fetters their sovereignty, and the

interests of the international community as a whole, which are best

served by fostering a rules-based system of dispute settlement. This

tension, and the predominant role played by states in the development

2 See Rainbow Warr ior Arbitration (New Zealand v. France), (1990) 82 I.L.R. 499 at

551 [Rainbow Warrior].

3 See furth er the text accompanying note s 23–34, below in this chapter. The term

“delictual” denotes a c ategory of wrongs roughly corres ponding to the concept

of “civil wrongs” in dome stic legal systems. It there fore refers to a breach of

obligations owed by one st ate to another, rather than obligat ions owed to the

community of stat es as a whole.

4 See, generally, I. Brown lie, Principles of Public Intern ational Law, 6th ed. (Ox-

ford: Oxford Universit y Press, 2003) at 420.

State Respon sibility 535

of international law, may explain why it was not until the nineteenth

century that substantial progress was made in establishing the basic

principle that most international legal actors now take for granted: that

breach of a primary obligation necessarily entails a corresponding obli-

gation to make right the wrong.

The development of this area of the law has been mainly custom-

ary, such that the general principles of state responsibility can be taken

to be universally applicable. Many of these principles have been ex-

plained and applied by international tribunals, adding a degree of cer-

tainty to such customary international law.

However, it is also important to acknowledge the International Law

Commission’s (ILC) major contribution to the process of codifying and

progressively developing the rules of state responsibility. The Commis-

sion began working on the topic in 19495 and, although the going was

at t imes slow and problematic, in 1996 it succeeded in adopting, on

f‌irst reading, a complete set of Draft Articles.6 Immediately following

this, a new Special Rapporteur was appointed and the Draft Articles

were substantially reworked in light of comments received from gov-

ernments.7 In 2001, a revised set of Draft Art icles was thus adopted

on second reading by the Commission and thereafter referred to the

UN General Assembly for further action by states.8 The General As-

5 Approved by the UN Gene ral Assembly in 1953: Request for the Codif‌icatio n

of the Principles of Inte rnational Law Gover ning State Responsibility, GA Res.

799(VIII), UN GAOR, 8th Sess., Supp. No. 17, UN Doc. A/RES/ 799(VII) (1953).

6 Draft Articles on State Re sponsibility in “Report of the Int ernational Law

Commission on t he Work of its Fort y-Eighth Session” (UN Doc. A/51/10) in

Yearbook of the Internat ional Law Commission 1996, vol. II (New York: United

Nations, 1996) 58 [Draft Articles 1996].

7 See J. Crawford, Spec ial Rapporteur on State Re sponsibility, Internation al Law

Commission, First R eport on State Responsib ility, UN GAOR, 50t h Sess., UN

Doc. A/CN.4/490 (1998); J. Crawford, Special R apporteur on State Respons ibil-

ity, Internationa l Law Commission, Second Re port on State Responsibility, UN

GAOR, 51st Sess., UN Doc. A/CN.4/498 (1999); J. Crawford, Specia l Rappor-

teur on State Res ponsibility, Internationa l Law Commission, Third Report on

State Respons ibility, UN GAOR, 52nd Sess., UN Doc. A/CN.4/507 (2000); J.

Crawford, Speci al Rapporteur on State Res ponsibility, Internationa l Law Com-

mission, Fourt h Report on State Responsi bility, UN GAOR, 53rd Sess., UN Doc.

A/CN.4/517 (2001).

8 Draft Articles on State Re sponsibility in “Report of the Int ernational Law Com-

mission on the Work of its Fif ty-Third Se ssion”, UN GAOR, 56th Se ss., Supple-

ment No. 10 (A/56/10), c. IV.E.1, UN Doc. A/CN.4/L . 602/Rev. 1 (2001) [Draft

Article s]. See also the Commentar ies to the Draft Articles on Responsibilit y of States

for Internatio nally Wrongful Acts in ibid., c. IV.E.2 [Commentaries]. The Draft

Article s and the ILC Commentaries accomp anying them are also c onveniently

reproduced in J. Craw ford, The International Law Commi ssion’s Articles on State