“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, nonlegal 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).