Smoking/no smoking: some remarks on the current place of fault in the ILC Draft Articles on State Responsibility

The question of the place of fault in the system of state responsibility has long been avoided by the International Law Commission. The Commission chose not to dwell on what was felt to be an old academic dispute and preferred to deal with the fault issue in a pragmatic way by envisaging it as a circumstance, the absence of which must be proven by the respondent state in order to preclude the wrongfulness of its conduct. In the Draft approved on its first reading, some hidden and open references to fault were found in various chapters, from imputation to the ascertainment of the consequences of the wrongful act, but the issue was not sufficiently explored. The present author urges the ILC to bring more clarity to this fundamental topic.