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International Responsibility Lecture Notes
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Notes taken during the lecture of the course international responsibility
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International Responsibility - notesWeek 1 - lecture: Monday 5 February 2024
Introduction: the concept of international responsibility
→ Prof. Andre Nollkaemper
International responsibility connects obligations to compliance and enforcement.
1. The concept of international responsibility
Unlawful act by State A vs. Claim for responsibility by State B
International law → someone is responsible means that that person is the author of an unlawful act
and is answerable in law to be injured party for the act’s prejudicial consequences.
International relations → an infringement on the legal interest of one subject of the law by another
creates responsibility in a form and to an extent determined by the applicable legal system.
A distinctive feature of law → is that a breach of a norm is attached to a legal consequence.
- Connection between a breach of a norm and a consequence. If you do not have
responsibilities, you cannot speak of law or order.
- As a coercive order the law is that specific social technique which consists in the
attempt to bring about the desired social conduct of men through the threat of a
measure of coercion which is to be taken in case of contrary, that is, legally wrong,
conduct. (Kelsen)
First element: unlawful act:
○ In all cases responsibility is engaged when it is determined that there is breach of an
international obligation (largely a question of interpretation in the light of the facts).
○ There is an internationally wrongful act of a State when conduct consisting of an
action or omission … constitutes a breach of an international obligation of the State
(art. 2 ARSIWA)
○ International obligations as primary rules
■ ILC disconnected responsibility from obligations
‘’[I]t is one thing to define a rule and the content of the obligation it
imposes, and another to determine whether that obligation has been violated
and what should be the consequence of the violation. Only the second aspect
of the matter comes within the sphere of responsibility proper‘’- Ago
■ However, in most claims of responsibility, the determination that a particular
primary rule is applicable, and the interpretation of such an obligation in the
light of the facts, is the most important part of a claim.
● Technically it is not part of law of responsibility.
■ More fundamentally: the disconnection of primary from secondary rules rests
on shaky conceptual and political foundations (Chimni → TWAIL)
● Criticism that the ILC does not deal with the substance of the
obligation, but only with the technical parts.
1
,ICJ Corfu Channel
● Damage to a British navy vessel near the coast of Albania. → Q: Is Albania responsible for
the damage?
○ How to connect damage to responsibility?
■ P. 22 → ‘’The obligations incumbent upon the Albanian authorities consisted
in notifying, for the benefit of shipping in general, the existence of a
minefield in Albanian territorial waters and in warning the approaching
British warships of the imminent danger to which the minefield exposed
them. Such obligations are based ... on certain general and well-recognized
principles, namely: ... every State's obligation not to allow knowingly its
territory to be used for acts contrary to the rights of other States’’
○ If you are faced with a question about responsibility, read very carefully what
obligations are alleged to be breached. As a secondary step fall back on ARSIWA.
Second part: the relational nature of international responsibility
○ In international relations as in other social relations, an infringement on the legal
interests of one subject of the law by another creates responsibility in a form and to
an extent determined by the applicable legal system (Brownlie/Crawford)
○ ‘The wrongful act, the violation of an international obligation, is thus accompanied
by the appearance of a new legal relationship between the State, to which the act is
imputable … and the State with respect to which the unfulfilled obligation existed,
which can demand reparation’ (Anzilotti)
■ But: community aspect (class 5) → bilateral
○ Draft request for an advisory opinion of the ICJ on the obligations of States in
respect of climate change
■ 1) What are the obligations of states in relation to climate change? (What are
the obligations of States under international law to ensure the protection of
the climate system and other parts of the environment from anthropogenic
emissions of greenhouse gases for present and future generations) 2) What
are the legal consequences of a breach of the obligations, (What are the legal
consequences under these obligations for State which, by their acts and
omissions, have caused significant harm to the climate system and other
parts of the environment)
with respect to:
a) States, including, in particular, small island developing States, which due
to their geographical circumstances and level of development, are injured or
specially affected by or are particularly vulnerable to the adverse effects of
climate change? and
b) Peoples and individuals of the present and future generations affected by
the adverse effects of climate change? → 2) ‘’to whom are they owed?’’
What makes responsibility international? - art. 3 ARSIWA
1) Applies between international legal persons
2) Triggered by the breach of an international obligation / the infringement of an international
right
3) The principle of responsibility itself is governed by international law
→ connection with dualism between international and domestic law
- Urgenda case (Hoge Raad)
2
, 2. International responsibility in the system of international law
Law of Responsibilities is one of multiple parts of the international legal system.
a) Law of treaties → common element: parts of both systems are customary law + both have
principles that articulate the consequences of a breach / distinctive element: 1) the obligation
continues to be binding / performed (treaties can be terminated); 2) reparation
b) Use of force → common element: responses to illegal use of force are necessarily premised
on a breach of international law → art. 51 UN Charter presupposes a prior wrongful act.
● US bombings on Yemen / Iran: eventually the question will rise whether Iran might
be a proper subject for the use of force by the US because it supported the Hutis?
c) Political institutions → how can the international community respond to aggression/genocide
in the case of the Gaza-conflict?
● UN Charter → responsibility to respond to such a breach, they have failed that task
(SC). In law it is their mandate to interfere.
● ARSIWA articles 41, 44 & 48 → no mention of the UNSC, but in early drafts there
was a chapter designed to place the UNSC/GA/ICJ in the system of international
responsibility. It is their duty to implement this.
d) Countermeasures
How does international law work to promote compliance?
3. International responsibility: control of power and a product of power
● The law of responsibility as an element of the rule of law: constrains power
○ Eagleton: power breeds responsibility
○ Browlie: Hague lectures
● However, the ability of the law of responsibility to curtain power is limited by that
power itself
○ Allott: ‘’Instead of limiting the power of governments, the ILC’s version of
state responsibility … affirms rather than constrains power’’.
■ The ILC should have spent time articulating the obligations of states,
but rather have formulated a set of rules that affirms rather than
constrains power.
■ ‘’The wages of sin are death, not responsibility for sin’’. → the ILC
created an in-between responsibility and consequences. They made it
more difficult to hold states accountable. The middle category is a
dangerous fiction, an unnecessary intrusion into the systematic
structure of a legal system. But it is not merely analytically
unnecessary. In the case of international law, it entails consequences
of the most serious and undesirable kind.
● Two especially vicious consequences result from using responsibility as a general and
independent category in international law:
1. It consecrates the idea that wrongdoing is the behavior of a general category
known as "states" and is not the behavior of morally responsible human
beings. It therefore obscures the fact that breaches of international law are
attributable formally to the legal persons known as states but morally to the
human beings who determine the behavior of states.
● The moral effect of the law is vastly reduced if the human agents
involved can separate themselves personally both from the duties the
law imposes and from the responsibility which it entails.
3
, ● The moral discontinuity between the personal obligations of the
government official and the obligations of the government is the
cause and effect of the legal discontinuity between international law
and municipal law.
● If international lawyers seek the long-term improvement of
international society and the increasing realization of justice, their
aim must be to bring together the moral sense of the human being
acting in national society and the moral sense of the human being
acting in international society.
● An ironic consequence of introducing a concept of international
responsibility is that it necessitates the possibility of attaching
liability in exceptional cases to individual human beings by the
addition of another category, the so-called international crime.
● The irony of such a proposal lies in the fact that such criminal
behavior is precisely the behavior for which collective, and not
individual, liability is more appropriate. The most heinous
international behavior will not be discouraged by attaching liability
to individual human beings if it has the effect of removing legal and
moral liability from the whole society which makes such behavior
possible and for whose benefit the behavior may well be carried out.
2. If responsibility exists as a legal category, it must be given legal substance.
General conditions of responsibility must be created which are then
applicable to all rights and duties. The net result is that the deterrent effect of
the imposition of responsibility is seriously compromised, not only by
notionalizing it (the first vicious consequence) but also by leaving room for
argument in every conceivable case of potential responsibility (the second
vicious consequence). When lawyers leave room for argument there is much
room for injustice.
■ Chimni: ‘’the claim of neutrality of secondary rules obscures the
organic historical relationship between primary and secondary rules,
which were shaped in the colonial era. In fact, the assumption that
secondary rules are completely decoupled from the primary rules of
state responsibility is a fundamental flaw of ARSIWA’’.
■ ‘’To make a double move: first, it distinguished between primary and
secondary rules to keep out the controversial issue of compensation
for taking of alien property, and then it reintroduced it in the guise of
a secondary rule stating the Western position.
■ “What is equally troubling is that while ARSIWA benefitted
corporations through rules of state responsibility, it also adopted a
view on the doctrine of ‘attribution’ that almost ruled out the
possibility of making states responsible for their conduct.”
→ form a scholarly perspective: where does this part of the law come from? Whose purposes does it
serve? It is not a treaty, because there is no consensus in the GA that this set of rules serves in favor of
all states.
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