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Can States determine unilaterally what counts as a wrongful behaviour in the absence of public international adjudicative institutions? Can meaningful responsibility for wrongful acts exist in the absence of a public adjudicative entity? What happens in the case of a conflict between a unilateral (private) judgment of a State accused of having committed a wrong and the decision of a (public) international adjudicative institution? The authors advocate for a system based on conflicting judgments concerning responsibility made both by international adjudicative institutions (publicly) and by the States themselves (privately), what they refer to as the ‘discordant parity hypothesis’. The case for the overriding power of international adjudicative institutions is based on the importance of the State’s publicly recognized duties. The case for the overriding power of judgments made by States stems from its promise to facilitate active engagement of States with their obligations. The chapter embraces a system that recognizes the normative force of both (and the inevitable resulting conflicts).
Once the ‘popular plaything of Realpolitiker’ the doctrine of rebus sic stantibus post the 1969 VCLT is often described as an objective rule by which, on grounds of equity and justice, a fundamental change of circumstances may be invoked as a ground for termination of a treaty. Yet recent practice from some States suggests that it is returning with a new livery. They point to an understanding that is premised on vital State interests––a view popular among scholars such as Erich Kaufmann at the beginning of the last century.
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