When the International Law Commission adopted a plan for its future work on State responsibility in 1970, it decided to set aside for separate treatment “questions relating to responsibility arising out of the performance of certain lawful activities — such as spatial and nuclear activities… [o]wing to the entirely different basis of the so-called responsibility for risk.”

News of the death in Wellington on 25 September 1984 of Robert Quentin Quentin-Baxter shocked his many friends attending the 39th session of the General Assembly of the United Nations. The traditional moment of silence was observed by the Sixth Committee, and many tributes followed, for Quentin's life had been one of dedicated and loyal service to his country and to the community of nations.

Few undertakings of the International Law Commission have proved to be as controversial as its study of “International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law”. Despite an encouraging initial report by a working group of the Commission on the suitability of the topic for codification and progressive development, the undertaking, once launched, immediately met with strong scepticism, at times outright rejection. It is true that over the last two years support for the Commission's work on the topic has grown appreciably both within and outside the Commission. However, detractors of the study remain strongly in evidence.

The obstacles facing the Special Rapporteur of the International Law Commission in drawing up a draft on the “content, forms and degrees of international responsibility” arise mainly out of the absence in the first part of the draft of any real theory of international delict introducing into this general concept criteria for differentiation which would enable more restricted categories to be distinguished. Once it is admitted that responsibility (defined in the abstract as the emergence of new legal relations between the wrongdoer on the one hand, and his victim or third parties on the other) can take a variety of forms, covers a broad spectrum and involves different subjects according to the legal causes which gave rise to it, then we can no longer avoid analyzing those causes. The internationally wrongful act, defined as the violation by a State of an international obligation, ceases to be the homogeneous legal concept of the first part of the draft adopted on first reading by the International Law Commission, but instead breaks down into a multiplicity of acts.

On 29 November 1979 the United States of America instituted proceedings before the International Court of Justice against the Islamic Republic of Iran in respect of the seizure and holding as hostages of members of the US diplomatic and consular staff and certain other US nationals. Although the Government of Iran chose not to appear before the Hague Court it defined its position in two communications addressed to the Court on 9 December 1979 and 17 March 1980. In these letters the Iranian Government took the view that the Court could not and should not take cognizance of the case since the question of the hostages

“only represents a marginal and secondary aspect of an overall problem, one such that it cannot be studied separately and which involves, inter alia, more than 25 years of continual interference by the United States in the internal affairs of Iran, the shameless exploitation of our country, and numerous crimes perpetrated against the Iranian people, contrary to and in conflict with all international and humanitarian norms.”

It has been recognized more clearly than ever in modern times that economic relations are inextricably bound up, on the international plane, with political relations among states. To quote from three distinguished American political scientists, C.F. Bergsten, R.O. Keohane and J.S. Nye

“On the motivational level … political and economic factors are frequently so closely intertwined that they cannot be disentangled. In addition, regardless of motivations, politics and economics are almost inevitably linked at the systemic level. An international economic system is affected by the international political system existing at the time, and vice versa.”

In this study theories which perceive the law's main goal to be instrumental in wealth creation, in the sense that legal rules should be formulated so as to be conducive to efficiency (and hence increase the wealth of a society), will be contrasted with perceptions of law as the continuous balance between political choices whose purpose is to advance justice, including distributive justice, as equality. These values are recognized, not as prudential or utilitarian, but as categorical. An apparent characteristic of doctrines which perceive the role of law as enhancing wealth in that they necessarily accept, as given, the contemporary values of distributive justice. In addition to this Panglossian quality, they have also raised doubts regarding welfare theories of social cost, “externalities” which provide the bedrock foundation of emerging theories of liability for harms due to scientific and technological innovations. These critics of social cost theories question the attribution of causation, and thus of costs, as a matter of logical or social necessity to any enterprise or conduct. Their question is “what is a cost of what activity?” This has been paraphrased, for example by Calabresi, as: “Is a pedestrian-auto accident to be attributed to driving or walking?” The welfare economists, in opposition to this relativism, argue that protean “transaction costs”, or “information costs” justify intervention in the name of amelioration. In this way the legislatures and the judges are called upon to intervene in the name of that same efficiency which was also standard to the conservative opponents of strict and absolute liability.

State responsibility is a subject of international law folklore. Its importance and contribution to the promotion of the rule of law among the world community of states is well known. Its codification and development has, however, gone on at its own stately gait, even at the International Law Commission where it has been considered since 1955.