Jörg Kammerhofer (University of Freiburg – Faculty of Law) has posted The Legal Theory of State Responsibility (Edward Elgar Research Handbook on State Responsibility in the 21st Century) on SSRN. Here is the abstract:
State responsibility is one of those topics which may on first glance seem to always have been thoroughly theorised. This chapter makes the case that legal theory is much more difficult to find in the centuries-old debate on state responsibility than is commonly assumed. Very few of them are actually concerned with properly theoretical as opposed to doctrinal/pragmatic or moral/political arguments. Powerful voices have continued to insist that a methodologically stringent discovery and analysis of its object of cognition is not, or not exclusively, its proper task. In many contexts, 'theory' is used as an inaccurate short-hand for 'doctrinal argument', also theoretical issues are then treated like any other doctrinal topic. This chapter argues that a more norm-theoretical approach analysis of the structure of international legal obligation is possible. Such an approach may help to clear up some of the long-prevailing confusions around fundamental issues of responsibility law. The chapter will first look at one of the classical problems of state responsibility law: fault, which turns out to be a doctrinal issue (Section 2). Second, it will look at the issue of communitarian norms which has been framed in a non-legal, more political-theoretical or even ideological way (Section 3). Third, question of the necessity of the rule of reparation will be used as an example where the debate is or can at least be re-constructed as properly legal and properly theoretical. (Section 4).
Recommended.