The doctrine of attribution in international law has been defined, in large part, by the International Law Commission’s (ILC) provisions on attribution of conduct in the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA). It is uncontroversial to note that despite the influence of the ILC’s rules on attribution, the regime of international responsibility remains underdeveloped. In addition to being underinclusive, the rules of attribution in ARSIWA are beginning to appear outdated. The central question, therefore, is whether the rules of attribution in ARSIWA are flexible enough to accommodate two disparate trends. On the one hand, we have witnessed an outsourcing of public functions to private actors in areas such as immigration, prison management, and education, whereby privatization has reduced state control and, consequently, potential state responsibility. On the other hand, there is a marked centralization of power in SOEs, some of which are now playing a global role as investors. This chapter assesses whether the default rules on attribution are flexible enough to manage both ends of the spectrum of state activity, which will be a crucial issue for regulators going forward.

Chapter 15 examines how the law of international responsibility relates to the jus ad bellum. It also examines the scope of the crime of aggression under the ICC Statute

This chapter assesses the contribution of the ICJ to the law of international organisations. It emphasises the limited role of the Court in this field, setting out the multiple reasons for this: parts of the law were developed before the Court commenced its work; and the Court has only had intermittent opportunities to consider it through its cases. The author argues that the Court’s approach reflects a more general ambivalence of classic international law when it comes to international institutions: that it emphasises the centrality of States in the international legal system, notwithstanding the steps that have been taken by States to institutionalise significant areas of international law.

The law of responsibility has been subject to massive change over the past centuries. While in key areas such change is well-established in the form of customary law or general principles, for particular transformations the process of change is more difficult to pin down. Major examples are the transition from a private to a public law model and from independent to shared responsibility, where the depth and scope of change and its support in practice remains uncertain. The author argues that the normal rules for determination of change in international law, reflected in the sources of international law, are not always helpful for determining change in the law of responsibility. To understand such change, it is helpful to distinguish change in secondary rules from change in primary rules (substantive rights and obligations) and tertiary rules (procedures and institutional rules for implementing responsibility). Change in the law of responsibility is to some extent driven by prior changes in primary rules, but it is also argued that secondary rules have a logic and justification that is to some extent independent from primary rules.

There are important doctrinal and institutional obstacles in the way of proper treatment of collective legal responsibility of several States for global environmental harm, but no serious theoretical obstacles. Difficult theoretical issues do arise at the level of justification, however. The chapter investigates how legal and moral responsibility of individuals, States, and collectives of both all fit together as a normative matter, using global environmental harm as its case study. It argues that shared moral responsibility – the responsibility an individual has when acting together with others – is a very important moral phenomenon. By contrast we have no need for the idea of a collective (such as a State) itself being morally responsible. Ideally, the shared ex ante moral responsibilities of individuals together to reduce greenhouse gas emissions would be discharged by domestic law under the guidance of international law. Where non-complying States face sanctions, the burden of those sanctions will be imposed on individuals who are not responsible for their State’s failure. Yet citizens have political obligations to improve their States, including in the matter of compliance with international law. If the sanctions can be seen as doing citizens’ work for them, the burdens imposed do not seem objectionable.

When considering ways for preventing Member States from hiding behind the institutional veil of the organization, two distinct approaches can be identified. The first focuses on the position of the Member State as a subject endowed with its own distinct personality and holder of its own rights and obligations. According to this approach, when the State acts as a member within or on behalf of the organization, it continues to be bound by its obligations and may be held individually responsible for their breach. The second approach focuses on the position of the State qua member of the organization. It relies on the institutional link binding together the organization and its members to affirm that, under certain circumstances, all members should be called upon to bear the consequences of the wrongful acts of the organization in a collective way. While much of the debate on the risk of abuse of the organization’s institutional veil tends to focus on the question of collective responsibility of members, the chapter argues that in practice it is through different forms of individual responsibility that the organization’s institutional veil has been pierced or circumvented.

This chapter explains the basis of the access to justice obligations placed on international organisations (IOs) under international law. One foundational issue is whether or not IOs are capable of being placed under international obligations in general. The answer to this question, as this chapter will show, is most certainly in the affirmative. IOs are international legal persons or ‘subjects’ of international law that possess their own legal personality. This means that international law can bind IOs directly and impose obligations that ought to be implemented by the IO. After showing how international law can directly place IOs under international obligations in general, the focus shifts to whether IOs can be placed under access to justice obligations in particular. The chapter discusses what is meant by access to justice as a value, and how that value has translated into legal rights in the form of the right to a fair trial. The discussion then clarifies how IOs specifically are put under access to justice obligations, including demonstrating the rationale behind doing so. It is argued that IOs are required to provide justice consistently with fair trial guarantees to private persons whenever IO actions adversely impact them.

This chapter analyses how an international wrongful act accrues from the violation of a due diligence obligation and its consequences. The first part discusses due diligence obligations against secondary rules of ARSIWA concerning the existence of a wrongful act. It is argued that violations of due diligence obligations stem from omissions and that the difficulty of establishing responsibility for failure of due diligence typically concerns the application of rules governing the breach, rather than rules of attribution of conduct. Accordingly, a critical reappraisal of the genealogy of Article 14(3) of ARSIWA and breaches of preventive obligations is undertaken; the chapter argues that the ILC wrongly conceptualised the ‘event’ to be prevented as a secondary rule, this way confusing the relationship between prevention and due diligence. The rest of the chapter examines due diligence obligations against other relevant secondary rules, such as circumstances precluding wrongfulness (specifically, force majeure and distress), the relationship between due diligence and complicity, and how reparation is to be accorded following a breach of due diligence obligations.

This chapter explores the foundations of due diligence under international law. Due diligence emerged in the international practice of the nineteenth century concerning diplomatic protection and the security of states, and developed as a notion linked to the responsibility of states in connection with acts of private individuals. For a long time, due diligence was conceived as a concept pertaining to the realm of international responsibility and it was primarily associated with the measure of a state organ’s fault. The chapter illustrates how, during the twentieth century, due diligence migrated from the realm of secondary rules to primary rules. The chapter clarifies the relationship between due diligence and overlapping concepts, like international liability and the notion of general principles of international law. It is argued that due diligence should be construed as an identifier for a typology of international obligations, something that provides meaning and rationale to them. The chapter concludes by clarifying the difference between due diligence as a ‘qualifier’ for primary rules of states, and due diligence as a ‘process’ linked to the activities of non-state actors.

Chapter 2 explores the ILC framework of international responsibility. The aim of the analysis is to identity rules which govern the allocation of international responsibility in a multi-layered structure where sovereignty is shared between different subjects of international law. This study argues that the purpose of both the ARIO and the ARSIWA is to determine whether a subject of international law is internationally responsible. If the question of responsibility arises in the context of a multi-layered structure, such as that of the EU, additional questions arise. The allocation of international responsibility within an international body falls outside the scope of the ARIO framework. Instead, this book suggests looking for guidance in the rules of organisation and the international dispute-settlement practice in which these rules operate.

This chapter introduces the issue addressed in this study, that is the allocation of international responsibility in a multi-layered structures like the European Union. It discusses the key doctrine on the question of responsibility of international organisations and points to the different approaches that dominate the discourse. This chapter also addresses the scope of the study, noting that it is focused on the questions of international responsibility that arise in international economic law. The introductory chapter also notes the methods of research employed in this study.

This chapter deals with the creation of private rights in areas of uncertain jurisdiction. What kinds of rights are they and what are their features? Do states possess the same competence to create private rights in delimited and undelimited spaces? To address the above, the chapter first discusses the creation of private rights by states in general. Then, it examines whether the lack of clearly established boundaries prohibits or otherwise hinders states from granting private rights in land and maritime spaces which are also claimed by other states. It is concluded that the absence of fixed international boundaries does not affect the powers of states to create private rights on land or at sea, even in areas claimed by two or more parties. Rather, the states’ competence to create private rights in areas of uncertain jurisdiction rests on the bona fide claim of a legal title. Although this claim may be rebutted or reduced by the establishment of an international boundary, the said private rights are legitimate and active.

The international legal and institutional structure around climate change ascertains that the responsibility to react to the phenomena lies predominantly with states. Although states play a vital part in addressing climate change, these structural constrains leaves limited room for alternative actors to take action to react to the problem. This chapter proposes looking at responsibility in world affairs as a political concept; a political concept that reconstitutes norms, practices, and actions in a manner that advances new ways to mitigate climate change. Drawing on Hannah Arendt’s conceptualisation of political responsibility, and the activism of non-state and substate within the UNFCCC, we suggest that political responsibility gives agency and space for different actors within the international community to engage in practices that help advance the climate change agenda. This, we further suggest, constructs a common community in which various actors undertake political action in order to influence policymaking.

The internationalisation of TG is now a fact. What are external actors, when providing assistance to TG, legally prevented from doing? They must in any event respect, and refrain from obstructing, the obligations incumbent on TA. They must avoid any misalignment with the minimum common denominator of emerging customary rules in relation to TG. This translates into concrete prohibitions for external actors who are prevented from imposing TG; altering the limitations ratione temporis and ratione materiae to the interim rule; undermining inclusivity; and impeding domestic TJ efforts. More generally, they have an obligation of moderation and must respect the fiduciary nature of TG serving a specific goal: the progressive and inclusive realisation of self-determination. The level of intensity of these norms and prohibitions (and potential engagement of their international responsibility) depends on the legal force of the core obligations from which they are derived or on the extent to which said principle has effectively gained precision through them.

"Chapter II critically analyses the application of secondary rules of international law in the context of member State participation in international financial institutions. It begins by looking into the evolution of discussions on member State responsibility, culminating in the regime devised by the ILC in Part V of the ARIO. In this exercise, it sheds light on how -member States’ governance role was acknowledged all along. Based on identified insufficiencies in the ARIO in that respect, the Chapter subsequently examines whether member State governance may rather lead to member State responsibility for their own wrongful acts performed in an institutional setting. It thus concentrates on attribution rules. Inspired by contexts where member States act as implementers of institutional decisions and as troop contributors, the focus is placed on their participation in the representative organs of international financial institutions. Firstly, the international legal status of Executive Directors is explored, to demonstrate that, despite the duality inherent in their role, they can be considered State organs. Secondly, attention is brought to the dynamics of decision-making, which attest to the notion that voting emerges as a corollary of the power of sovereign representation, and should therefore be deemed conduct attributable to the State.