Posted by: Jean d’Aspremont
Forthcoming in International and Comparative Law Quarterly (2015)
Jean d’Aspremont[1]
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.[2] 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.
Indeed, this impressive work does not only constitute the most authoritative and extensive treatise on the rules and practices pertaining to state responsibility. It also provides some welcome and unheard insights on the agents and the socio-historical context that contributed to the current mould of the contemporary doctrine of state responsibility. If anything, SRGP is much more than a “black letter law” presentation of the state-of-the-art. The situated dimension of the presentation gives the readers – be them practitioners or researchers – insights as to the (agenda behind) conceptual and paradigmatic choices that informed the coalescence of state responsibility as is presented in SRGP. The author’s awareness of the impact of socio-historical contexts on the design of doctrines is at its best when he defends the rise of the doctrine of responsibility as an autonomous legal category that should be seen as a post-World War 1 product. In this respect, he specifically argues that state responsibility is not a bargain between states but a “juridical construction” whose design must be understood as a “response to the ruinous world of the Great War, and a recall of the practice of responsibility as applied in the last decades of the nineteenth century, from the Alabama arbitration to the Venezuela claims and the two Hague peace conferences”.[3]
Needless to say that in sharing his self-awareness for the influence of agents and the socio-historical context on the design of the doctrine of state responsibility, James Crawford simultaneously provides the reader with an unprecedented glimpse on the agenda and the conceptual choices he himself sought to promote during his stint as Special Rapporteur of the International Law Commission (hereafter the ILC). Indeed, what James Crawford lets the reader see of his self-awareness is itself a product of the paramount role he played in the design of those rules and practices. It is not necessary to recall that the author of SRGP is one of these agents whose conceptual choices proved very influential in shaping (and completing the codification) of the contemporary doctrine of state responsibility. What matters here is that SRGP shows what James Crawford thought of the work of the ancestors and masters in the field as well as the parts of this heritage that should be salvaged. In that sense, SRGP can also be read as operating a “synthesis”[4] of those accounts of the conceptual and functional variations of the law of responsibility that vindicate the best the author’s vision of the doctrine.
The vindicating dimension of the historical account provided in Part I of SRGP inevitably raises the question of whether its author still is in need to defend his vision of state responsibility. After all, his influence on the codification process, on the judicial practice, as well as the scholarship on responsibility is unequalled. And yet, according to the author of these lines, codification processes – especially of secondary rules of international law – should be understood as a dialectic and mutually reinforcing exchange between private scholarly reflection and public deliberative institutional dynamics geared towards legitimacy and acceptance.[5] According to such an understanding, the completion of a set of articles like the Articles on Responsibility of States for Internationally Wrongful Acts[6] (hereafter ARSIWA) does not terminate the codification process. It only marks the conferral upon the codified rules of public law-making the certification necessary to endow the secondary rules concerned with authority, which is indispensable for their global acceptance by law-applying authorities. In that context, James Crawford’s SRGP can be understood as another step in the dialectical process to stabilise the doctrine of state responsibility around the paradigmatic choices which prevailed at the ILC. Said differently, SRGP is one more exercise of persuasion to consolidate the imposition of a given approach to the law of responsibility by supplementing the ARSIWA and the official commentary by a highly authoritative scholarly study. SRGP constitutes James Crawford’s capstone to almost two decades of efforts to persuade governmental and academic audiences.
If SRGP adds the final touch to its author’s own approach to state responsibility,it is no coincidence that its structure as well as its overall conceptual framework reflects with precision the paradigmatic choices behind the ARSIWA. Indeed, a quick glance suffices to show that the book espouses the ARISWA’s paradigmatic distinctions between unlawfulness and wrongfulness or between determination of responsibility and the content of responsibility. In the same vein, SRGP vindicates the claim of a unity of the regime of responsibility, which informs the codification exercises of the ILC,[7] by approaching questions of responsibility of international organisations from the vantage point of collective and ancillary responsibility.[8] It is as if, according to SRGP, the regime of the responsibility of states and that of the responsibility of international organisations and of their member states for acts of the international organisations were part of the same regime. The consolidating virtue of SRGP also manifests itself in the author’s demonstration of the resilience of the doctrine as conceptualised in front of new phenomena – like questions of shared responsibility.[9]
It could have been expected that SRGP would not only be an attempt to consolidate the vision found in the ARSIWA, but that it would also be a platform for its author to push forward those interpretations and conceptual choices which fail to be supported by the ILC at the time. In this respect, one inevitably thinks of the famous controversy that swirled around the entitlement of non-injured states to take countermeasures in the general interest, provided that they could at least demonstrate a universal legal injury. It is well-known that in the light of the opposition within the ILC, James Crawford, an avowed proponent of that option, secured the inclusion of a saving clause, thereby leaving the resolution of the matter to further developments in international legal scholarship and practice.[10] It is remarkable that the commentary that accompanies the saving clause provided an account of the practice which, rather than supporting the open-endedness of the ARSIWA, came to buttress the entitlement of non-injured states to take countermeasures in the general interest.[11] Interestingly, SRGP does not perpetuate the ambiguity of the commentary nor does it seek to engage with that debate any further, subject to the question of the ability of injured states to call for assistance to seek redress for the breach.[12] SRGP limits itself to recall the pitted positions in the debate on Article 54 ARSIWA.[13] What is more, SRGP even seems to stick to (and vindicate) the rationale of the saving clause, thereby explicitly backing away from the support for countermeasures in the general interest that was perceptible in the commentary to Article 54.[14] It is as if the author of SRGP had come to terms with the impossibility of imposing the idea of countermeasures in the general interest and retreated from the veiled activism that infused the commentary.
The self-restraint that characterises SRGP should certainly not be bemoaned. It can even prove instrumental in the authority of the account of the doctrine of state responsibility that is offered by SRGP. In all respects, the exercise is carried out with brilliance and includes not only knowledge of the agents and socio-historical forces that influence codification processes, but also of what it takes to persuade an audience and impose one’s understanding of a doctrine. There is no doubt that this exhaustive, precise and rigorous exposé of all the dimensions of the doctrine of state responsibility will establish itself as a holy writ in terms of state responsibility.
This short review ends by shedding light on two aspects of the SRGP that could perplex some informed readers. A first remark must be formulated in connection with the rich historical overview provided by SRGP. In this respect, it is somewhat startling that Dionisio Anzilotti is not given a more prominent role. In the dominant opinion in the mainstream literature Anzilotti is seen as the great mastermind behind the contemporary doctrine of state responsibility following Ago’s extensive reliance on Anzilotti’s constructions.[15] In contrast, the author of SRGP offers a much more nuanced image. For James Crawford, the distinction between the breach of a substantive rule and responsibility for its breach dates back to Wheaton whose paradigmatic choices left an important imprint on the contemporary doctrine of responsibility.[16] In the same vein, James Crawford claims that it is Heffter’s Droit International Public de L’Europe (1857) that puts forward the notion of wrongful act (fait illicite) for the very fist time.[17] By the account made by James Crawford, the work of Anzillotti is, at best, a continuation of these ancestors, his main contribution was to elevate state responsibility as a distinct field and to distinguish between natural causality and normative causality (imputation).[18] SRGP seems to go as far as claiming that the work of Eagleton surpasses that of Anzilotti.[19] Such a departure from the mainstream understanding of the cardinal influence of Anzilotti is certainly refreshing. This treatment of the Italian master however remains question-begging. Indeed, it reinforces the above mentioned portrayal by James Crawford of the ARSIWA as synthesising a variety of heritages rather than having a clear linear paternity and a limited number of forebears.
Equally surprising is probably the way in which the charges raised against the conceptual and functional choices made by the ILC are addressed by the author of SRGP. It is certainly remarkable that, despite being himself one of the architects of the doctrine, James Crawford has no qualms confronting the criticisms that have been leveled against the current doctrine which he contributed to design.[20] But it is simultaneously astonishing that the account of the scholarly criticisms provided by SRGP leave out the well-known – and probably the most compelling – objections that were raised against the fundamental paradigmatic choices behind the ASRIWA. The criticisms that are discussed in the book only pertain to the format that has been given to the main rules[21] or their interpretive relevance.[22] Nothing is said of Philip Allott’s famous argument that the paradigmatic choices behind the ASRIWA affirm rather than constrain power and provide a convenient veil behind which morally responsible person can take shelter.[23] The same can be said about the silence of SRGP about Vaughan Lowe’s objection against the idea of precluding wrongfulness.[24] It is not that in addressing those criticisms SRGP should have revisited the paradigmatic choices that have informed the ASRIWA one more time. These choices have prevailed as a matter of social acceptance within governmental and academic audiences and it would be of no avail to reopen these debates. Yet, SRGP was maybe the ultimate opportunity to clinch once and for good the major controversies still affecting some of the paradigmatic choices behind the ASRIWA and which, to this date, have remained unaddressed.
[1] Professor of Public International Law, University of Manchester and Professor of International Legal Theory, University of Amsterdam. Personal SSRN page: http://www.ssrn.com/author=736816. The author wishes to thank Ilias Plakokefalos and Christiane Ahlborn for their comments on an earlier version. The usual disclaimers apply.
[2] M. Koskenniemi, ‘Histories of International Law: Significance and Problems for a Critical View’ (2013) 27 Temple Journal of International and Comparative Law 215.
[3] J. Crawford, State Responsibility – The General Part (Cambridge University Press, 2013),p. 26.
[4] Ibid., section 2.1 of Part I speaks about the “modern synthesis” when presenting the ILC codification process.
[5] The argument could be made that given that the ILC has codified the most important fragment of the systemic rules of the international legal order, this public process of the production of secondary rules through the ILC is coming to an end. I have already made that argument in J. d’Aspremont, ‘Les travaux de la Commission du droit international relatifs aux actes unilatéraux des États’ (2005) 109 RGDIP 163.
[6] Articles on Responsibility of States for Internationally Wrongful Acts, ILC Yearbook 2001/II(2) (ARSIWA).
[7] See C. Ahlborn, ‘The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations – An Appraisal of the “Copy-Paste Approach”’ – (2012) 9(1) International Organizations Law Review 53-66; Amsterdam Law School Research Paper No. 2012-98; Amsterdam Center for International Law No. 2012-14; SHARES Research Paper 13 (2012). Available at SSRN: http://ssrn.com/abstract=2168628.
[8] See Crawford, State Responsibility – The General Part, n. 3,Part IV.
[9] Ibid.,chapter 10 (pp. 325-358) and chapter 12 (pp. 395-430).
[10] See Article 54 ARSIWA; J. Crawford, ‘third report on state responsibility’, UN Doc. A/CN.4/507 and Add. 1-4 (2000), at 102-4.
[11] ARSIWA Commentary,ILC Yearbook 2001/II(2), Commentary to Article 54, paras. 3-6.
[12] Crawford, State Responsibility – The General Part, n. 3,at 704.
[13] Ibid., at 704-705.
[14] Ibid., at 706.
[15] G. Nolte, ‘From Dionisio Anzilotti to Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations’ (2002) 13 EJIL 1083.
[16] Crawford, State Responsibility – The General Part, n. 3, at 20-21.
[17] Ibid., at 21.
[18] Ibid., at 23.
[19] Ibid.,at 24.
[20] Ibid.,at 85-92.
[21] See D. Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority’ (2002) 96 AJIL 857-873, at 867. See Crawford, State Responsibility – The General Part, n. 3, pp. 87-88.
[22] See US – Antidumping and Countervailing Duties, WT/DS379/R, 22 October 2010, para. 8.87ff, and discussion in Crawford, State Responsibility – The General Part, n. 3, on p. 89.
[23] P. Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard International Law Journal 1-26.
[24] V. Lowe, ‘Precluding Wrongfulness or Responsibility: A Plea for Excuses’ (1999) 10 EJIL 405-411.
