Existence, breach and responses to the breach of state responsibility: A critical analysis

Abstract

Had there been only one man on earth, the idea of right, between individuals or between individual and the state, would have no existence because, the conception as to right of one entity presupposes the existence of at least another entity possessed of the capacity to hold right. The more entities with the capacity to hold right, the more potentiality to have breach of such right and thus giving rise to responsibility. Because of the very reason that a state is a part of the world with limited territory and population, it is less difficult to determine the existence and breach of responsibility of a person within a state than the determination of the existence and breach of responsibility of a person in international plane where the territory and population is hundred or thousand times bigger. International responsibility, mostly attributable to state, like responsibility under a national law, arises from the breach of a legal interest or legal right of one subject of international law by another. Unlike national law, absence of an international legislative body for international law leads the states to set up the standards of conduct for each of the subjects of international law in the form of mostly bilateral and multilateral treaties. Standard of conduct for an international legal person also originates from the customary laws developed from various forms of state practices. If there is any right, there must be violation of right and stressing the need for some mechanisms responding to the violation or breaches of such rights. Unlike national law, again, in international law there is no adjudicating body having jurisdiction to settle disputes of all of its subjects in each and every matter. None can ignore that in every country, most prevalently in the developing countries, powerful and influential persons are not so easy to be brought to book by existing mechanisms as it is in case of powerless general people. Since international law is nothing but law with wide applicability, it may not also be uncommon that powerful states will strive to take the advantage of the mechanisms provided for responding to the breaches of international obligation. Critical analysis of the responding of the creation, breach and specially responding mechanisms to international law is of emerging necessity. Perhaps it is inherent weakness of the international law itself that it does not provide for such an effective responding mechanism to the breaches of international obligation as we find it in domestic law. This article aims at making a comprehensive and critical analysis of the character, forms and conditions of international responsibility, breach of it and responses to such breach. In addition to the procedural rules of creation of responsibility for violation of international obligation, procedural and substantive rules for some particular cases of international responsibility will also be discussed here.

Keywords: International, Responsibility, Wrongful act, State, Breach, Attributability and responding to breach.