State Responsibility

• Author: John H. Currie
• Profession: Faculty of Law University of Ottawa
• Pages: 384-414

CHAPTER

11

STATE RESPONSIBILITY

A.

GENERAL

PRINCIPLES

1)

Concept

and

Development

of

State

Responsibility

In

international law, state responsibility

is an

area

of

general application,

meaning that

it is of

potential relevance

in

virtually

all

substantive inter-

national

legal contexts. Broadly speaking,

the

topic governs

the

legal

consequences

of a

state's breach

of its

international legal obligations.

It

may

therefore

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

also

the

international equivalent

of a law of

remedies.

Some

authors

and

jurists

prefer

to

think

in

terms

of a

body

of

"second-

ary"

legal obligations that arise only upon breach

of

"primary" obligations.

The

latter would

be

substantive legal obligations (such

as the

duty

to

per-

form

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

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

384

State Responsibility

385

compared

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

customary

obligations, arguably

"tortious"

in

nature.

Nor is

there even

a

clearly

developed distinction between

the

consequences

for

states

of

criminal behaviour

and

lesser,

"delictual"

forms

of

wrongdoing.J

This lack

of

sophistication

can be

understood

by

considering

the

relatively

recent

development

of a

general theory

of

state

responsibil-

ity.

European states have long engaged

in the

practice

of

making repa-

rations

Inter

se,

usually pursuant

to

treaty

undertakings.

The

practice

of

paying compensation

for

personal

or

property damages

suffered

by

foreign

nationals also developed relatively early. Outside these con-

texts, 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

reprisals,

or

authorizing one's nationals

to

carry

out

reprisals against

nationals

of the

offending

state.2

Obviously

such

a

crude system

of

enforcement

is

undesirable

if the

goal

is to

establish

a

mature legal system based

on

conceptions

of the

rule

of law

rather than

the use of

force.

However,

a

tension arises

between

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

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.

1 See

further below, text accompanying

notes

16-25.

The

term

"delictual"

denotes

a

category

of

wrongs

roughly

corresponding

to the

concept

of

"civil

wrongs"

in

domestic

legal

systems.

It

therefore

refers

to a

breach

of

obligations

owed

by one

state

to

another,

rather

than

obligations

owed

to the

community

of

states

as a

whole.

2 See

generally

I.

Brownlie,

Principles

of

Public

International Law,

5th ed.

(Oxford:

Oxford

University

Press,

1998)

at

436-37.