- International Responsibility Today – Essays in Memory of Oscar Schachter | brill
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In my view, Villalpando's treatment of the topic ultimately fails in adapting to this reality. He ultimately resists and discards this theory, opting for a more homogeneous application of state responsibility, and infers that whatever legal situation is prevalent at the level of the primary norm carries over to the relationship generated by the secondary level of the breach at — Implying a potential overlap of partners at all stages, Villalpando posits that the major actors involved in the newly formed, secondary, legal relationship must correspond to those who may claim an interest in having the primary obligation upheld at This construction inexorably reverts back to the involvement of the international community as a whole at both the primary and secondary levels of international breaches, and remains predicated on Villalpando's assertion that the cohesion characterizing the international community rests upon the solidarity of its members in safeguarding certain collective or common interests at 25— It should be noted that his approach conceptualizes state responsibility in terms of a binary continuum at involving individual interests and collective interests at opposite poles, while also identifying a common regime of responsibility and a community regime of responsibility at It becomes clear that the interplay between primary and secondary norms hinges, to a large extent, on the level of governmental involvement in an international breach, which also propels the distinction between direct and indirect responsibility to the centre of the discussion.
For instance, the assertion that indirect responsibility for acts carried out by private persons is contingent on a primary obligation of the state to intervene 16 brings the relationship between direct and indirect responsibility into sharp relief. Yet, the discussion in both studies insufficiently elucidates the consequences and implications of these distinctions in the hard cases, namely where governmental input is virtually indecipherable or where private actors subvert and challenge traditional rules of state responsibility.
International Responsibility Today – Essays in Memory of Oscar Schachter | brill
However, aside from specific illuminating passages, 19 too little emphasis is placed on the actual content of primary obligations across all canvassed fields, thereby signalling a need to better define the extant scheme of state responsibility for private actors. This argument becomes particularly compelling when faced with terrorism and the corresponding lack of consensus on both its definition and on what states are actually expected to do to repel it, i. These impediments, which are partially caused by unclear legal language and largely driven by politics, could be addressed by revisiting certain aspects of the current law, thereby making the case for a responsibility-expanding regime more attractive.
Equally interesting is the idea of debating whether attribution is adequately suited to address these volatile situations and whether the notion of control, which remains inextricably connected to the concept of attribution in the ILC's Draft Articles, should be excised altogether in certain cases involving non-state actors.
Although met with some academic resistance, 20 this exercise remains a valid one and select excerpts found in Ragazzi's book 21 serve as building blocks towards further exploration of the topic. Similarly, the relationship between Security Council practice and the creation, interpretation and application of rules of state responsibility remains largely underexplored, especially in the field of counter-terrorism. He also aptly identifies relevant doctrinal currents in favour of and against the proposition that the Security Council frequently spearheads certain law-shaping incursions into the realm of state responsibility at — Regardless of one's stance on the debate, it remains fair to contend, as Villalpando does, that Security Council decision-making informs the unilateral implementation of responsibility by states, along with the application of secondary rules of responsibility.
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Security Council resolutions can also be particularly instructive in determining the legal characterization of a given situation or act as a benchmark in ensuring the legality of requests or countermeasures adopted by states at More importantly, Villalpando infers that meaningful parallels and interrelationships may be drawn between the Security Council's traditional functions and the implementation of state responsibility at — In response to the sceptics and drawing from these bodies of work, I would argue that the Security Council plays, and should play, a central role in shaping and applying the law of state responsibility to counter-terrorism.
In fact, international terrorism and the legal tools to suppress it epitomize a truly sui generis phenomenon, in that they offer a unique opportunity for the Security Council to adjudicate on and advance the law of state responsibility without overstepping its more fundamental and intrinsic boundaries. Although its findings can sometimes be predicated on a prior declaration of responsibility, it is fair to argue that the Security Council does not directly rule on the question of state responsibility , per se , rather framing its reasoning within the furrow of Chapter VII powers.
However, it becomes clear that there exists a significant conceptual and practical straddling of Chapter VII objectives and the suppression of terrorist acts, which are invariably tantamount to threats against international peace and security. At the outset, the very nature of terrorism seems to engage Chapter VII considerations and, in dealing with threats to international peace and security, the Security Council has sometimes ventured upon an analytical terrain that melds its executive functions with state responsibility undertones.
In recent years, the Council has increasingly tackled terrorism by invoking state responsibility-like language, thereby signalling that the seemingly indelible chasm between that body of law and the restoration of international peace and security can blur on occasion. This is not to suggest, however, that, by potentially straddling each other in the context of Council decision-making, both of these areas are necessarily mutually interpenetrating.
But this phenomenon surely extends beyond the mere borrowing from one branch's vernacular by the other, and foreshadows the payoffs of undertaking more substantial and horizontal incursions into the commonalities of both regimes, so as to better address the threats of terrorism. Similarly, other linkages, especially those that bridge the divide between international responsibility and international criminal justice, will play an integral part in circumscribing a regime of state responsibility for private acts.
Following the lead of Villalpando at —, —, and certain contributors in Ragazzi's book, 24 future academic endeavours addressing these aspects of state responsibility will have to start from the assumption that this field remains complementary to international criminal law and the mechanisms of individual criminal responsibility , and that both areas can, at times, be mutually reinforcing.
I would, however, register a preliminary caveat, in that they both serve very different objectives for the purposes of counter-terrorism. International criminal law aims primarily at eradicating impunity, imposing punishment for individual criminal acts, and promoting deterrence. However, its mechanisms are invariably deployed after the fact, namely only once an international criminal act has been committed. Surely, an argument can be made that fear of criminal conviction may dissuade private actors from perpetrating crimes, but its persuasiveness begins to wane when faced with the resolve and determination of terrorist organizations such as Al-Qaeda.
Although state responsibility can also achieve similar goals, albeit through the screen of the state, its strength lies in its potential preventive character, if infused with the right mechanisms and underlying philosophy. Because we are dealing under that rubric with governments that have to withstand international scrutiny, as opposed to highly motivated individuals pursuing their own political goals, the mere threat of triggering state responsibility might compel states to combat terrorism more efficiently within their borders. In other words, the prospect of states incurring responsibility, coupled with the apprehension of destabilized reciprocal behaviour patterns, may actually shift incentives onto governments and induce them to comply with their obligations, provided the content of those obligations is sufficiently defined.
In sum, both books contribute enormously to a fast-evolving and complex area of international law. For reasons of space, other salient themes cannot be thoroughly canvassed here. It would probably be much to the dismay of Hersch Lauterpacht 26 that Ragazzi's book is replete with discussions 27 on whether municipal law analogies can inform the law of state responsibility, an exercise that seems increasingly attractive with the emergence of transnational actors.
Villalpando also explores the possible transplantation of domestic criminal law to the international level at After noting the efforts of those who lament the failure of importing corresponding criminal law safeguards into international law at — , 28 he ultimately discards the rigid transplantation of criminal law in state responsibility at —, Inherent in this proposition is a value judgment that operates in tandem with international law and, in turn, instils added legal value and protection to certain types of obligations, such as jus cogens engagements at According to some contributions in Ragazzi's book, 29 the resolution of the legal and conceptual discrepancies described above will also depend, to a large extent, on elucidating the sophisticated question of invoking state responsibility and its relationship with Article 48 of the Draft Articles.
This problem is further compounded by the recent emergence of transnational violence and human rights abuse, and brings about specific implications for erga omnes obligations. This, again, encapsulates the problem of modern state responsibility: it responds largely to a unitary typology and, as Villalpando points out, rests upon a predominantly bilateral conception of legal relationships at — In reconciling the disparate threads and arguments in both books, a common, overarching theme emerges: classical constructions of state responsibility are no longer suited to responding to the multiplicity of actors in international relations.
Consequently, solutions to present day concerns may also better emerge amidst a multiplicity of ideas, perspectives and insights. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account.
1. Oggetto del trattamento
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