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4 - Responsibility of States for Wrongdoing

Who Is to Decide?

from Part I - International Responsibility of Public Institutions: Public and/or Private?

Published online by Cambridge University Press:  01 September 2022

Samantha Besson
Affiliation:
Collège de France, Paris
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Summary

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).

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Publisher: Cambridge University Press
Print publication year: 2022

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