Revising the Draft Articles on State Responsibility

James Crawford^*

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Abstract

This article reviews some major issues involved in revising Part 1 of the 1980 draft on state responsibility and responds to comments made in this symposium. In the author's view: (a) there is no single principle of fault as a basis for state responsibility in international law, nor is the possibility of no-fault responsibility a priori excluded. The debate is thus a false one. Retaining Articles 1 and 3 recognizes that the particular standard of responsibility is set by the primary rules; (b) criticisms that the articles on attribution of conduct to the state embody a `very traditional' Western concept of the state fail to take into account the flexibility of the rules; (c) the distinction between obligations of conduct and of result lacks consequences within the framework of the secondary rules, and is of doubtful value; (d) the idea of international crimes as expressed is unnecessary and potentially destructive. But the idea that some obligations are owed to the international community as a whole and that grave breaches thereof may attract special consequences, is important. The problem is to find an acceptable formulation; (e) two different kinds of circumstances precluding wrongfulness are dealt with in Chapter V: some (e.g. self-defence) preclude wrongfulness; others (e.g. distress, necessity) preclude responsibility. This distinction should be more clearly made; (f) the balance between restitution and compensation needs further thought, but it is not clear that the Draft Articles as presently formulated are defective.

^* Whewell Professor of International Law, University of Cambridge, Lauterpacht Research Centre for International Law, 5 Cranmer Road, CB3 9BL, Cambridge, United Kingdom; Member of the International Law Commission; Special Rapporteur on State Responsibility. I should like to thank Pierre Bodeau for his assistance and the Leverhulme Trust for its financial support.

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