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 That is not to say, however, that literature prior to the adoption of the ILC Articles has been entirely superseded.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.
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.
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