28 October 2014
Forthcoming in International and Comparative Law Quarterly (2015)
State responsibility is one of these foundational doctrines that give shape to international law as much as it gives it teeth. State responsibility provides a conceptual framework through which inadmissible behaviours are constructed, captured and acknowledged while also endowing international law with reactionary mechanisms against those behaviours deemed unacceptable. In that sense, state responsibility is both a screen where standards about what is admissible at the international level are projected as much a parapet from which respect of those standards can be defended. Needless to say that such a twofold functional view of state responsibility is all but ontological. It is the result of certain choices made by international lawyers as well as the socio-historical circumstances in which such choices were made. It will not come as a surprise that agents and socio-historical factors have been changing throughout centuries of legal thinking, thereby bringing about severe fluctuations as to the way in which state responsibility is conceptualised as well as to the function it is due to perform. It obviously is impossible to trace and establish precisely the conceptual and functional variations that affected the development of the law of state responsibility over the last centuries. Indeed, international lawyers have little at their disposal to reconstruct the history of state responsibility, for they only have inherited a few fragments of thoughts which they are bound to read and interpret anachronistically – that is through the cognitive categories of their time. The imprecision and anachronistic readings to which international lawyers are condemned when they think about the agents and socio-historical factors that have informed (and led to) the creation of the contemporary doctrine of state responsibility does however not forestall the acquisition of self-awareness for those structuring parameters. On the contrary, seeking to acquire awareness for some of them, albeit anachronistically, has become a prerequisite of what is taken as serious international legal scholarship in the 21st century.
The foregoing helps us appreciate where James Crawford’s State Responsibility – The General Part (hereafter SRGP) stands out and distinguishes itself from traditional treatises on foundational doctrines of international law. (more…)