"State responsibility” can be invoked in arguing that a state bears a duty to (an)other state(s) and may be liable for a wrongful act, including one that is not explicitly covered by an explicit treaty. The International Law Commission’s (draft) Articles on State Responsibility[1] and Articles on International Liability for Injurious Consequences arising out of Acts Not Prohibited by International Law[2] have sought to establish a state’s duty and a basis for liability and remedy owed to another state for harm caused by such wrongful acts. Acts invoking "state responsibility” could include certain cross-border social or environmental consequences such as pollution or population transfer.
That effort is related also to the ILC’s work on "international liability for injurious consequences arising out of acts not prohibited by international law.”[3] By the same token, where an act is not covered by an explicit treaty provision, the concept and term "responsibility” could apply also to international organizations, which are not party to treaties. The effort of the ILC continues to explore the extent and content of that "responsibility.”[4] Similarly, in the case of international organizations, "responsibility” can be invoked along with other general terms (accountability, commitment, duty, etc.), except for "obligation,” which habitually refers to required behavior in accordance with binding terms of a treaty.
The wrongfulness of the act also may constitute a cross-border breach/violation of a treaty obligation or general principles of international law, including human rights and humanitarian law. However, the prospective application of the (draft) Articles could provide a further basis and opportunity to (prevent wrongful acts and) establish liability and the corresponding remedy/reparations required. Because the (draft) Articles are explicit about the state’s responsibility (duty) to provide/ensure reparations, at least to the aggrieved state, they may offer greater problem-solving/conflict-resolution potential than less-evolved norms, standards and their instruments from earlier generations. However, that prospect has yet to be affirmed in actual application of the Articles on State Responsibility.[5]
Responsibility also conveys a general, non-legal sense, meaning simply to be supposed to do something, or liable to answer for one’s action or omission. Thus, the use of the term could mean something far short of a binding treaty obligation, and the Articles on State Responsibility are intended also to cover wrongful acts that are not specifically proscribed by treaty as black letter law. Some may find the universal use of the term "responsibility” to be too broad and imprecise to distinguish which level or type (i.e., respect, protect and/or fulfill) of accountability is meant. Others may find that reserving the term "responsibility” only to mean nontreaty-specified norms, as in the (draft) Articles, to be too restricting.
This note attempts to achieve greater precision of terminology so as to obviate the need for explanations that arises from mixing usages in a single case, volume or more-complex project, like the ETO Consortium. Therefore, it is proposed to reserve use of the term "responsibility” to cases in which that form of accountability is meant as a function of invoking the Articles on State Accountability (or Articles on International Liability for Injurious Consequences arising out of Acts Not Prohibited by International Law).
[1] International Law Commission, "Responsibility of States for Internationally Wrongful Acts,” Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10). Text reproduced in annex to General Assembly resolution 56/82, 12 December 2001, and corrected by document A/56/49(Vol. I)/Corr.4. Report of the International Law Commission on the work of its fifty-third session: report of the Sixth Committee (A/56/589 and Corr.1), 26 November 2001.
[2] By decision of the ILC in 1997, it subdivided this topic into two parts: "prevention of transboundary damage from hazardous activities” and "international liability in case of loss from transboundary harm arising out of hazardous activities.” The ILC concluded its work with its adoption of the respective draft articles and draft principles and commentaries on the two subjects and submitted them to the General Assembly review and action. The draft articles on Prevention of Transboundary Damage from Hazardous Activities are annexed to " Consideration of prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm,” A/RES/62/68, 8 January 2008.he draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities are annexed to "Allocation of loss in the case of transboundary harm arising out of hazardous activities,” A/RES/61/36, 18 December 2006.
[3] From the outset of its work on the topic of State responsibility, the Commission agreed that that topic should deal only with the consequences of internationally wrongful acts, and that, in defining the general rule concerning the principle of responsibility for internationally wrongful acts, it was necessary to adopt a formula which did not prejudge the existence of responsibility for lawful acts. At its forty-ninth session, in 1997, the Commission decided to split the topic into two parts: "prevention of transboundary damage from hazardous activities” Report of the International Law Commission on the work of its fifty-third session (23 April–1 June and 2 July–10 August 2001), A/56/10, 24 October 2001 and "international liability in case of loss from transboundary harm arising out of hazardous activities” ("Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities” and commentary, in Report of the International Law Commission Fifty-eighth session (1 May-9 June and 3 July-11 August 2006), A/61/10 (2006), pp. 101–82.
[4] See Giorgio Gaja, Special Rapporteur, "Fifth report on responsibility of international organizations,” A/CN.4/583, 2 May 2007.
[5] The ICJ cited an earlier draft text of the Articles in Gabčíkovo-Nagyamaros Project (Hungary/Slovakia), ICJ Reports 1997, at 7; and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), case 91, International Court of Justice (ICJ) Judgment returned on 26 February 2007.). For a critique of the Court’s standard in this case see Mark Gibney, Katarina Tomaševski and Jens Vedsted-Hansen, "Transnational State Responsibility for Violations of Human Rights,” Harvard Human Rights Journal 12:267–96 (1999); also Mark Gibney, "ETOs and the Draft Articles on state responsibility” paper presented to ETO Consortium (2008).
