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  • Print publication year: 2011
  • Online publication date: September 2011

2 - Complicity between bilateralism and community interest

Summary

Specific international rules do not exist in a vacuum. Rather, they are necessarily connected to the greater whole of the international legal system. This implies that new rules develop in a certain framework. Such a framework is often analysed with respect to the structure of the international legal system which is in place at a given time. A rule on responsibility for complicit States is no exception in this regard. In fact, the law of State responsibility is particularly characteristic of the prevailing general concept of international law because, as Pierre-Marie Dupuy has remarked, every epoch will project therein its concept of the relations between the subjects of international law, their acts and the community to which these actors belong.

As was hinted at in the introduction, two different ‘paradigms’ are usually considered to be relevant for an analysis of the problem of complicity: the traditional bilateralism of international law and its alleged subsequent turn towards the protection of community interests. The legal status of the rule embodied in Article 16 ASR is not yet conclusively settled. It is therefore important to gain an awareness of the conceptual significance of the provision and to consider how it fits into the current structure of the international legal order. In this chapter, we will be particularly interested in the way the two conflicting views on the structure of international law impact upon our problem: is it really the case that traditional bilateralism stands in the way of imposing responsibility for complicity (section 1)? And to what extent has the turn towards community interest contributed to the recognition that complicity is no longer to be tolerated in international law (section 2)?

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