The missing “custom” in the customary international law: Understanding the undue restriction of states’ influence in the creation and crystallisation of law of state responsibility

The law of state responsibility occupies a key position in international law. It is not concerned with primary obligations, but is a body of general secondary rules governing 1) when a state is considered to have breached one of its international obligations, 2) the consequences flowing from the breach, 3) the locus standi of injured parties, and 4) the form of remedy sought. However the absence of primary obligations means that the developing the law of state responsibility as a set of customary international law (“CIL”) rules is extremely complicated, since states are free to determine their own specific secondary rules in their treaties.