International Responsibility Today: Essays in Memory of Oscar Schachter * L'emergence de la communaute internationale dans la responsabilite des Etats

The law of state responsibility has generated considerable academic writing over the past decades, and earlier scholarly accounts also attempted to elucidate the thorny relationship between non-state actors and international responsibility. However, contemporary realities have propelled certain aspects of international responsibility – ranging from the relationship between state responsibility and erga omnes obligations to the responsibility of international organizations – to the forefront of academic debate. As certain areas of international law shift away from a state-centric conception towards an increasingly transnational paradigm, it seems that the idea of international responsibility must be re-examined in this new light of recent events and trends. The two books under review touch upon this main theme in a general sense, albeit in very different ways, while also at times converging into philosophically adjacent fields of inquiry. They both contribute and, in some instances, add immensely to an ongoing debate over a complex and elusive branch of international law. On the one hand, International Responsibility Today, a collection of essays edited by Maurizio Ragazzi, Senior Counsel specializing in international law at the World Bank, corrals an impressive series of contributions from high-profile international law scholars, while paying homage to the life and work of Oscar Schachter. The book's contents revolve around the central theme of international responsibility, and individual contributions are grouped into four topics: general issues of state responsibility, particular concerns in the law of state responsibility (such as the protection of foreign investment under international law or the issue of humanitarian intervention, for example), state responsibility and the courts, and responsibility of international organizations and other non-state entities. A very different but nonetheless complementary book is Santiago Villalpando's doctoral thesis undertaken at l’Institut universitaire de hautes études internationales, titled L’émergence de la communauté internationale dans la responsabilité des Etats, which offers a sociological exploration of the concept of ‘international community’.1 This is a term that has generated its share of controversy in legal scholarship,2 and the book ultimately identifies key manifestations of the concept in public international law, while also steering its readers away from the notion that ‘international community’ derives solely from de lege ferenda theoretical constructs (at 75). In other words, Villalpando's monograph does not so much deliver an exhaustive review of international responsibility issues, but rather elects the realm of state responsibility as a primary intellectual and practical prism through which the idea of ‘international community’ can be better analysed and understood. At the outset, the varying sets of research and scholarly objectives underpinning both studies make a rapprochement challenging, but nonetheless immensely useful on points of detail. Among the salient themes running through both books, the idea of coercion, as inspired by Kelsen's writings on the subject, pervades the discussion. Particular tensions arise between the notions of international obligation, sanction and reparation for internationally wrongful acts. Can the concepts of reparation and sanction be dissociated from the international obligations they purport to redress or uphold? This debate prompts some authors to call into question whether coercion constitutes an end in itself under the law of state responsibility, or whether it solely remains a means to enforce international obligations. For example, in Ragazzi's collection there is some question whether the spirit of Kelsen's view that international law exists as a coercive order – whether by failing to dissociate reparation from the primary norm,3 to use state responsibility parlance, or that states may commit a ‘delict’ or a crime4 – has been upheld in contemporary international responsibility folklore.5 Others seek to redefine some tenets of Kelsen's theory by expounding that coercion is not an end in itself on the international plane, but rather facilitates enforcement of a primary obligation, thereby disabling the dominant inter-state model of enforcement and compliance: ‘If one follows the theory that sanctions are necessarily a determinant element of law, it should not matter that such sanctions or, more precisely, the coercion behind it, does not come from another state but from a non-governmental source, as long as it forces the object state to fulfill a hitherto unfulfilled international obligation.’6 As a corollary, the idea of reciprocity plays a large role in the field of state responsibility, especially when addressing the idea of coercion. Not only does it have a sort of neutralizing effect on international relations, but the expectation of reciprocity can also generate incentives for governments to comply with their international obligations. That reciprocity, translated in Ragazzi's book as a ‘shared interest in the maintenance of predictable patterns of conduct’, stabilizes asymmetrical power dynamics engendered by the scheme of responsibility and countermeasures.7 Therefore, the commission of an internationally wrongful act by one state against another may unsettle relations between both states. Similarly, once the mechanisms of state responsibility are engaged and one state adopts unilateral sanctions against the other towards the fulfilment of the violated obligation, reciprocal state relationships and expectations may also be undermined. It follows that the originally aggrieved state may actually incur more damage than the wrongdoing state, should the former take it upon itself to impose countermeasures on the latter, and thereby disrupt a previously established pattern of predictable reciprocal international relations. Although Villalpando echoes some of these ideas in his treatment of ‘la théorie de la contrainte’ (at 134–136), he also highlights what could be termed a community model of international responsibility through the lens of Kelsen's theory. In this light, sanctions aimed at redressing an internationally wrongful act are perceived as emanating from the international community. Therefore, when a state applies a sanction in a decentralized setting, it does so as an extension of said community, while this very community arguably retains a monopoly over power in the legal order (at 135). However, Villalpando goes on to state that the existing scheme of state responsibility also rests upon a bilateral logic in its treatment of state reactions to internationally wrongful acts, while acknowledging that the concepts of legal obligation and subjective right are inextricably intertwined. Put another way, reprisals are ordinarily prohibited under international law but can be exceptionally allowed when used to counteract an internationally wrongful act by a state, which, in many ways, remains the sole warrantor of its subjective rights and may seek compliance through sanctions or war against the wrongdoing state (at 136). This conception is also partially grounded in the classical theory of responsibility, ‘la théorie de la réparation’ (at 129–134), which resists the notion of coercion and state-imposed sanctions, and remains predicated on the idea that the mechanism of reparation itself fulfils the objectives of international responsibility (at 133). It should be mentioned that the precepts of the classical theory of responsibility rest upon three pillars: i) an internationally wrongful act amounts to a violation of a subjective right of a state and engenders a bilateral relationship of responsibility; ii) international responsibility necessarily connotes a new and mandatory relationship between the wrongdoing and wronged states, based on the idea of reparation; and iii) the regime of international responsibility is unique. This is not to say, however, that the concept of sanction is absent from the classical theory. As opposed to being literally embedded in the conception of responsibility, i.e. by constituting a direct consequence of the internationally wrongful act, it is rather incorporated independently into the classical theoretical framework. Therefore, reprisals and war remain available to the aggrieved state as a means of compelling performance of the obligation to repair the initial wrongful act, as opposed to flowing directly from the breach itself. In other words, the classical theory attempts to satisfy the ideals of accountability through a preliminary screen, namely reparation of the wrongful act, but offers a second tier of recourses to ensure that reparation is achieved and the purposes of responsibility upheld. In my view, these parallels only reinforce the notion that dominant theoretical readings of international responsibility ultimately serve the same function, albeit through different means or similar means invoked at different stages of the inquiry. The true challenge, therefore, lies in elucidating the relationship between bilateral and multilateral tensions stemming from the mechanics of international responsibility, as they are shaped and transformed by difficult, and sometimes fact-specific, phenomena such as the proliferation of non-state actors8 and erga omnes obligations.9 The substance of these considerations is further compounded by two underlying tenets of modern state responsibility: the changing of partners and the distinction between primary and secondary obligations. This important distinction relies on the assumption that the violation of a primary obligation, such as a treaty obligation, automatically triggers the application of a secondary set of obligations, such as the obligations of cessation and non-repetition of the wrongful act, to the perpetrator. As a corollary, both this distinction and the changing of partners are interdependent. In fact, as soon as a primary obligation is breached, a series of secondary obligations found in state responsibility repertoire is set in motion and a new legal relationship is formed. This transition might also engender a substitution of major actors and/or partners at the primary level, whom, while involved or directly affected by the events leading to a breach, might be shuffled around or discarded through the screen of secondary norms – i.e. when applying the rules of state responsibility to a specific breach. The confusion surrounding the changing of partners, perhaps exacerbated by the pressing need to better situate the individual within the international system, operates on the logic of the International Law Commission's Draft Articles and poses increasingly intractable challenges to the idea of responsibility for private acts, as acknowledged in Ragazzi's book. For example, Emmanuel Roucounas invokes the ‘gradual transformation that occurs in the relationship between the ship, the flag state and the port-state control’, and notes that if ‘a ship does not meet the internationally agreed standards, irrespective of her place of registration, her flag state or the citizenship of the owner, she is retained by the authorities of the port-state and is liable for the violation of these standards.’10 This clearly reiterates the need to further delineate the role of non-state actors under state responsibility, while this specific example remains ‘one more efficient expression of the genuine link, which is henceforth required, not only between the ship and her flag state, but also between the ship and international law.’11 In my view, Villalpando's treatment of the topic ultimately fails in adapting to this reality. Although he recognizes the newly formed legal relationship resulting from a breach as a pervasive component of state responsibility (at 132), his construction of the actual contents and contours of this relationship is challenged by a widespread view within the ILC, namely that secondary rules empower/determine which states may protect collective interests vis-à-vis a breach. 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 313–314). 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 247). 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 25–29). It should be noted that his approach conceptualizes state responsibility in terms of a binary continuum (at 224) involving individual interests and collective interests at opposite poles, while also identifying a common regime of responsibility and a community regime of responsibility (at 246).12 The latter is also subdivided into a common regime (covering all violations of erga omnes obligations) and an aggravated regime (applicable to the most serious violations) (at 246–259). Needless to say, the distinction between primary and secondary rules, which has been persuasively defended recently,13 permeates the discussion above and remains a widely debated issue, including in Ragazzi’s14 and Villalpando’s15 books. 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 intervene16 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 terrorism is a case in point and contributions in Ragazzi's edited collection17 supplement post-9/11 scholarship exploring the link between state responsibility and terrorism.18 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. In the spirit of Villalpando's remarks (at 140–141), there is clearly a need to establish general parameters/principles applicable to all international breaches and, more importantly, vis-à-vis unconventional actors. Against the criticism purporting to disable the primary/secondary distinction, I would suggest that further defining secondary norms of responsibility would actually shed new light and, perhaps, better circumscribe primary obligations. 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.e. the primary obligation. 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 book21 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.22 Building on existing scholarship,23 Villalpando delivers a thoughtful discussion of this relationship (at 434–450), judging that the Security Council interprets certain aspects of state responsibility practice in specific fields (at 438–439). 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 443–447). 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. 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 450). 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 446–447). 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 in that they a for the Security Council to on and the law of state responsibility its more and Although its can sometimes be predicated on a of responsibility, it is fair to argue that the Security Council does not directly on the question of state responsibility, rather its within the of However, it becomes clear that there exists a and practical of objectives and the of acts, which are to against international and At the outset, the very of terrorism seems to considerations and, in with to international and the Security Council has sometimes upon an that its functions with state responsibility In recent the Council has increasingly terrorism by state thereby signalling that the between that of law and the of international and can on This is not to however, by other in the of Council both of these areas are necessarily this the from one by the and the of more and incursions into the of both so as to better address the of Similarly, other especially those that the between international responsibility and international an in a regime of state responsibility for private acts. the of Villalpando (at and certain in Ragazzi's academic addressing these aspects of state responsibility have to from the assumption that this field remains complementary to international law the mechanisms of individual and that both areas at be I however, a preliminary in that they both serve very different objectives for the purposes of counter-terrorism. International law at for individual acts, and However, its mechanisms are the fact, namely only once an international act has been an argument can be that of may private actors from but its to when faced with the and of organizations such as Although state responsibility can also similar albeit through the screen of the state, its lies in its potential if with the right mechanisms and underlying are under that with governments that have to international as opposed to their the of state responsibility might states to terrorism more within their In other words, the of states responsibility, with the of reciprocal may actually shift incentives governments and to comply with their obligations, the content of those obligations is on recent attempts at further defining state responsibility also have to into the that can be from the between state responsibility and use of Villalpando's discussion on the (at In both books contribute to a and complex of international law. For of other salient themes be canvassed It would be much to the of that Ragazzi's book is with on whether law can the law of state responsibility, an exercise that seems increasingly with the of transnational actors. Villalpando also the of law to the international level (at the of those who the of corresponding law into international law (at he ultimately discards the of law in state responsibility (at This discussion clearly his assertion that the of international law (at has to the of a common set of for the international community. in this proposition is a that operates in with international law and, in legal and protection to certain of obligations, such as (at to some contributions in Ragazzi's the of the legal and above also to a large extent, on elucidating the question of state responsibility and its relationship with of the Draft This is further compounded by the recent of transnational and rights and brings specific implications for erga omnes obligations. Villalpando's argument becomes particularly illuminating there in fact, be a on the issue between primary rules, which to all states, and secondary rules, which would to certain states and thereby the of reparation vis-à-vis the violation of collective rights and interests (at the of modern state responsibility: it largely to a and, as Villalpando points rests upon a bilateral conception of legal relationships (at In the and in both books, a theme classical of state responsibility are suited to to the of actors in international relations. to concerns may also better a of and

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