State Responsibility in International Law

by

Silvia Borelli

• LAST REVIEWED: 23 November 2020
• LAST MODIFIED: 27 June 2017
• DOI: 10.1093/obo/9780199796953-0031

Introduction

State responsibility constitutes a central institution of the system of public international law. The law of state responsibility encompasses a variety of issues. First, it defines the circumstances in which a state will be held to have breached its international obligations, as well as the limited catalogue of justifications and defenses a state may rely upon in order to avoid responsibility for an otherwise wrongful act. Second, it covers the consequences of the breach of an international obligation, including in particular the central obligation to make full reparation, as well as the obligation to put an end to continuing wrongful acts. Finally, it deals with the way the responsibility arising from breach of an international obligation is implemented, in particular governing which states may invoke the responsibility of the wrongdoing state, as well as the means by which responsibility may be implemented, in particular through the adoption of countermeasures. The primary point of reference in relation to the law of state responsibility is the Articles on the Responsibility of States for Internationally Wrongful Acts (the ILC Articles), adopted by the International Law Commission (ILC) in 2001, which constitute the fruit of the ILC’s attempt to codify and progressively develop the law in this area. The work of the ILC on the topic has exerted a profound influence in setting the terms of the debate. Since 2001, discussion of particular issues of state responsibility has generally been framed by—or is avowedly a reaction to—the approach taken by the ILC. Even prior to 2001, and in particular since the early 1970s, much of the literature discussed questions of state responsibility primarily by reference to the state of the ILC’s work as it stood at the time. To the extent that the approach of the ILC on specific questions evolved over the course of its work, some caution is necessary in referring to older literature. That is not to say, however, that literature prior to the adoption of the ILC Articles has been entirely superseded. In relation to a number of issues, in particular questions of the theory of state responsibility, some of the older literature remains of great relevance. Similarly, to the extent that particular questions, for instance the notion of “state crimes” or the classification of obligations, were eventually not included in the final version of the ILC Articles, the older literature remains the primary source of reference.

General Overviews

The law of state responsibility plays a central role in international law, functioning as a general law of wrongs that governs when an international obligation is breached, the consequences that flow from a breach, and who is able to invoke those consequences (and how). As a consequence, the law of state responsibility is multifaceted and covers a veritable multitude of issues. The situation is further complicated by the fact that the customary international law of state responsibility is to be understood as constituting a set of default rules, and that, in application of the lex specialis principle, in general states are free to agree that different rules should apply to specific obligations in force between them as regards, inter alia, attribution of conduct, when an obligation is breached, the content of any responsibility that arises, and questions of invocation. As a result, any attempt to cover even a majority of the most important issues that could potentially arise under the law of state responsibility is a daunting task. The leading point of reference in relation to the default rules of customary international law is the International Law Commission’s (ILC’s) Commentaries to the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ILC Commentaries) (see The Work of the ILC on State Responsibility). Prior to final adoption of the Articles, a number of works aimed to provide more or less complete overviews of the law of state responsibility, although none of them are complete; for instance, Brownlie 1983 was the first part of a planned two-volume treatment of the law of state responsibility, with the (unpublished) second volume to follow covering circumstances precluding wrongfulness and countermeasures and questions of standing. Such earlier works remain of substantial value, although obviously they now have to be read in the light of the approach adopted in the ILC Articles. Crawford, et al. 2010 is an authoritative, up-to-date, and extensive volume that consists of scholarly articles from leading academics and practitioners: this is the leading reference work on the topic of state responsibility, with a comprehensive range of contributions covering the major topics of the law in this area. The articles are generally of a very high quality, and each includes a list of relevant additional sources for further reference. Crawford 2013 is the leading monograph on the topic, drawing on the author’s special expertise, and his experience as the ILC’s last Special Rapporteur on the State Responsibility. Provost 2002 contains a selection of academic writing on state responsibility, published soon after the final adoption of the Articles. It also includes the text of the final ILC Articles as well as the draft ILC Articles adopted on first reading in 1996. Ragazzi 2005, although not purporting to provide a comprehensive overview of the topic, is a useful collection of essays by prominent academics, touching on many important aspects of the law of state responsibility.

• Brownlie, Ian. System of the Law of Nations, State Responsibility, Part I. Oxford: Oxford University Press, 1983.

  Written after the adoption of Part 1 of the Articles on first reading in 1980. Particularly influential in relation to many of the theoretical issues involved in the ILC’s approach to responsibility, this authoritative (albeit partial) study of the general principles of state responsibility is particularly clear in its exposition of the objective nature of international responsibility and its rejection of any general requirement of fault.

• Crawford, James. State Responsibility: The General Part. Cambridge, UK: Cambridge University Press, 2013.

  DOI: 10.1017/CBO9781139033060

  The leading in-depth monograph on the topic of state responsibility. The volume provides authoritative commentary on a variety of crucial points. It draws heavily on the author’s specials experience and expertise, including his service as the ILC’s last Special Rapporteur on the topic of state responsibility.

• Crawford, James, Alain Pellet, and Simon Olleson, eds. The Law of International Responsibility. Oxford: Oxford University Press, 2010.

  The articles in this collection are generally excellent, and each includes a list of relevant additional sources. The collection is intended to serve as a critique of the ILC Articles, while also examining the many other aspects of international responsibility that may arise in a multifaceted international legal system.

• Provost, René, ed. State Responsibility in International Law. Aldershot, UK: Ashgate, 2002.

  This volume, published soon after the final adoption of the ILC Articles in 2001, collects a number of scholarly articles on particular issues of the law of state responsibility, including historical evolution, the general theory of international responsibility, state crimes, and responsibility for injuries to aliens. There is also a useful section containing a number of pieces representing the various critical approaches to state responsibility.

• Ragazzi, Maurizio, ed. International Responsibility Today: Essays in Memory of Oscar Schachter. Leiden, The Netherlands: Martinus Nijhoff, 2005.

  A long list of distinguished contributors provided chapters for this volume, which focuses exclusively on the law of international responsibility. Three of the four parts examine issues of state responsibility (as well as including some contributions that deal with liability for acts not prohibited by international law), while the last part deals with the responsibility of international organizations and other nonstate entities.