Defences in the Law of State ResponsibilityA View from Jurisprudence
Ongoing discussions among international lawyers on defences in state responsibility have close analogies with debates in two other fields: debates in general legal theory on defeasibility in law, and debates in criminal law theory (and philosophy) on the elements of criminal responsibility. The similarities are not surprising. But it is striking how little cross-fertilization there seems to have been. For jurisprudence and criminal law scholars have developed a number of points and distinctions that international law theorists working on defences should find helpful. This chapter illustrates these claims. Section 2 looks at defences from the point of view of general legal theory, and section 3 does the same from the point of view of criminal law theory, recommending specific solutions to particular problems. Section 4 then shows how these contributions can help to answer some persistent questions surrounding defences in the law of state responsibility.