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State responsibility in international law is considered one of the cornerstones of the field. For a long time it remained the exclusive responsibility system due to the primacy of States as subjects of international law. Its unique position has nonetheless been challenged by several developments both within and outside the international legal order, such as the rise of alternative responsibility ideas and practices, as well as globalization and its consequences. This book adopts a critical and holistic approach to the law of State responsibility and analyzes the functionality of the general rules of State responsibility in a changed international landscape characterized by the fragmentation of responsibility. It is argued that State responsibility is not equally relevant across the broad spectrum of international obligations, and that alternative constructions of responsibility, namely international criminal law and international liability, have increased in standing.
Scholarly interest in the law of state responsibility has been on the rise during recent years, and increasingly so critical explorations. In contrast to much other literature this study adopts a comprehensive, critical approach to state responsibility in order to elicit discussions about state responsibility in the broader context of international responsibility. It explores the role and functions of state responsibility highlighting the fact that multiple purposes are ascribed to state responsibility ranging from its reparative function to the maintenance of world peace. It is argued that state responsibility no longer enjoys a unique position in international law and that its importance varies across the different branches of international law. International practice has developed away from one general law of wrongs. Specialized regimes have grown next to state responsibility that fare better in meeting the standard of functionality, which will be the basis for appraisal in this study.
International liability and international criminal law are presented as alternatives to the law of state responsibility. Both regimes have developed out of real-life incidents to which state responsibility has not offered a sufficient enough solution. With their respective focus on adequate compensation and the desire to penalize perpetrators for the most serious violations of international law, they represent qualitatively different approaches to state responsibility. A more limited test of functionality is conducted in order to analyze whether the practical utility of these two regimes is higher than concerning the law of state responsibility. Three criteria that are crucial to a well-functioning and practical responsibility regime are explored: social control, collectivity, and signalling effect. The thematic evaluation of the two responsibility regimes shows that in some respects these particularized regimes fare better than state responsibility while also suffering from problems internal to their particular regimes. The core of the matter is that both regimes have their own rationale from which they do not purport to slide.
A historical analysis of state responsibility shows that this body of law developed from an implicit doctrine into a separate topic of international law over the centuries. The traditional law of state responsibility was confined to injuries to aliens, largely due to the widespread resort to international arbitration in the second half of the nineteenth century. Following scholarly interest in responsibility, codification initiatives mushroomed with the domestic analogy playing a varying role. Progress in codification was made only in the 1960s with the abandonment of the controversial traditional law of state responsibility for the benefit of generalized and secondary rules on state responsibility. State responsibility now became important for the role it played with respect to legality and rule of international law; yet, its foundation was based on bilateral state relations and remedying of concrete wrongs. As a consequence, the law of state responsibility as codified in the 2001 Articles on State Responsibility remains infused with tensions and dilemmas, in addition to which the legal form and effect of the Articles have remained under debate.
The concluding chapter submits that state responsibility, which forms part of the ground rules of international law, is not equally important across the broad spectrum of international obligations. The functionality of the general rules of state responsibility varies as a result of the multiple purposes state responsibility is expected to fulfil: the generality of the law stresses its system-building function rather than practical usefulness. As a result, other responsibility constructions have emerged next to the law of state responsibility seeking to fill voids left by the law of state responsibility. The importance of particularized solutions are emphasized, as well as calls for the acceptance of the fragmentation of international responsibility. It is submitted that state responsibility no longer enjoys a unique position in international law. Instead, several avenues of responsibility all embody the core idea that legal consequences will follow from breaches of the law.
The law of state responsibility has been affected by profound changes that have taken place in international affairs. The doctrine that used to concern mainly bilateral state relations has faced numerous challenges on different fronts. Globalization has empowered non-state actors, states have become less powerful and new issues of varying importance have emerged, some clearly demanding global attention such as climate change. Besides these external challenges, different perceptions of responsibility have appeared and gained prominence in the international arena. This fragmentation of responsibility has resulted in the coexistence of multiple responsibility regimes in international law whose relations are debated. The present study tests the law of state responsibility against the framework of functionality in order to see how well the regime and its rules meet the challenges. It is argued that normative significance must be accompanied with practical utility.
The chapter addresses problems with the general rules of state responsibility from the perspective of functionality. The analysis follows the structure of the Articles on State Responsibility, which means that the critique is organized according to the elements of an international wrongful act, the content of responsibility, as well as its implementation. It is argued that the general rules of state responsibility struggle to respond to the heterogeneity of actors, subject-matters, and norms implicated in the governance of international affairs. It is further contended that state responsibility is marginalized in some situations; in situations of serious wrongs international criminal law has appeared as an alternative remedy, and significant harm is dealt with through rules on international liability. Thus, other forms and regimes of responsibility have appeared, making it necessary to understand responsibility in broader and more versatile terms than what is offered by the state responsibility doctrine.