Responding to the undesired. state responsibility, risk management and precaution

Abstract

This contribution builds on some earlier studies on the shortcomings of and ways around the traditional model of State responsibility under international law. It aims to obtain a better understanding of the nature of State responsibility, the reasons for its failure in some contexts and the basic characteristics of some alternative, complementary mechanisms that have been developed in international law. To that end, it understands the rules of State responsibility in a functional way: as a way of organizing our dealings with undesired events or situations. This understanding of State responsibility makes it possible to compare the rules of State responsibility with some other ways of dealing with undesired events. Following Francois Ewald's distinction between ‘responsibility’, ‘insurance’ and ‘precaution’, three co-existing models of dealing with undesired events will be discussed: (1) State responsibility for internationally wrongful acts (dealing with the reparation of a broken normalcy); (2) risk-management (dealing the mastering of time and disciplining of the future) and (3) precaution (dealing with conditions of late modernity or ‘world risk society’).