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This chapter defends the idea of national responsibility and identifies its limits. It argues that where nations act in ways that impose burdens on themselves or on others, responsibility for such burdens falls on every member, even on those who opposed the decisions or policies in question. The argument turns on the sharing of beliefs and attitudes that characterizes national communities, and on the benefits that membership brings with it. It is not wrong, in general, to hold contemporary fellow-nationals responsible for actions performed in their name. But the bearing this has on questions of global justice remains unclear. For one thing, nations can be held responsible not only for the benefits and burdens they create for their own members, but also for the impact that their actions have on outsiders. For another, outcome responsibility has to be understood alongside remedial responsibility, the responsibility we may have, as individuals and as members of collective bodies, to respond to human deprivation, including global poverty. Thus, by accepting the idea of national responsibility, we have not foreclosed the question what global justice demands of us.

While the previous part of the book considers treaty law this chapter turns to the question of whether customary international law provides for a duty to prosecute serious human rights violations. It departs from an analysis of the protection of aliens as a precursor of human rights law and turns to contemporary concepts of general international law. Reference is made to international criminal law, to the emerging concept of State responsibility for human rights violations, and its relevance for criminal procedure. The chapter critically evaluates the idea of state crimes in international law. It also considers universal jurisdiction and the concept of aut dedere aut judicare. Finally, a description of current State practice highlights recent standards for post-conflict justice and explains the limited scope for amnesties. The chapter concludes with a summary.

The modern state is a historic phenomenon that has been under constant transformation since its birth in the period of absolutism. In this chapter, a framework is presented for analysing changes of the state and changes are mapped out that have occurred in Western Europe since the 1980s. Since the completion of the state’s democratization, the most interesting question has traditionally been what it is doing. Answers to this question have led to a number of labels such as ‘welfare state’ or ‘night–watchman state’ (i.e. the liberal non–interventionist state). The chapter first suggests six dimensions (levels of state activities; state responsibilities; production modes; resources employed (laws, personnel, money); finance (generation of resources); steering of state activities) that together capture the essence of the state, and then provides an overview of changes in Western Europe since the 1980s along these six dimensions.

This chapter reflects on the scope and the continuity of the responsibility of the state. It considers the ways in which states are connected to situations in the world and the significance these connections have for their members. It looks at the ways in which this responsibility can continue, in some form, despite radical changes or breaks in the identity of the state. In undertaking this enquiry some light is shed on one of the hardest questions of constitutional theory, a question even Aristotle dodged: the determination of the point at which one state ends and a new state begins.

This chapter explores the extent to which general international law principles of state responsibility have been influenced by international human rights law, rather than the impact of state responsibility on international human rights law. It focuses on the two core aspects of state responsibility: attribution to a state, and the extent of the obligations on a state for which it has international legal responsibility. It also considers the general impact that international human rights law may have had upon the broader understanding of state responsibility. In so doing, the issue of whether it is appropriate in any event to engage in an evaluation of the impact of international human rights law on the general international law of state responsibility, especially considering the apparently ‘private’ nature of many human rights abuses, is considered.

This chapter provides the necessary theoretical justification to the study. It highlights the shortcomings of traditional legal solutions to ensure the environmentally sound conduct of private companies through home and host State control, international State responsibility, and international environmental regimes for civil liability. Corporate environmental accountability is therefore presented as an immediate way—additional to traditional legal solutions (such as home and host State control, international State responsibility, and international civil liability regimes)—to contribute to equalizing the international protection afforded to foreign direct investment and multinational companies with expectations of reasonably acceptable environmental conduct.

Addresses concern over the so‐called ‘democratic deficit’ in the EU in comparison with the USA. The author deduces that there are two reasons for the political salience of this alleged deficit: the pragmatic reason that the EU's institutions are inadequate for a union with fifteen members and an expanded range of competencies (and will become unworkable when it is enlarged by the joining of the Eastern European countries); and the trilemma of the democratic welfare state. This is that EU member states cannot want to shed their welfare‐state obligations without jeopardizing the bases of their democratic legitimacy, they cannot want to reverse the process of economic integration, which exposes national welfare states to regulatory competition, and they cannot want to avoid regulatory competition by shifting welfare‐state responsibilities upward to the European level. The chapter focuses primarily on the third part of this European trilemma. It begins with a brief theoretical discussion of the preconditions of democratic legitimacy, then it explores how these are affected by European integration; it concludes with an examination of European policies that could strengthen national efforts to cope with the constraints of regulatory competition.

This chapter begins by focusing on the impact of jus cogens on the law of reparation: the duty to provide restitution, compensation, and satisfaction to redress the wrong caused to States and their nationals. It then covers the invocation of jus cogens norms in case of their breach (erga omnes obligations), including the possibility of third-party countermeasures, criminal responsibility of States, and ILC's special consequences for breaches of peremptory norms.

This chapter compares the concepts of State responsibility under international law and State liability for economic harm suffered by private persons. It contains a comparison of the rules on State liability in France, the United Kingdom, Germany, the United States, Spain, Italy, Switzerland, and Austria. In addition, the practice of the European Court of Justice concerning non-contractual liability of the European Union and of the European Court of Human Rights is discussed. The rules on State liability generally try to balance the interests of the individuals harmed with the rights and duties of the States. The interests of the general public taken into consideration include the protection of public funds, the so-called ‘floodgate-concern’, as well as considerations of the distribution of powers within a State and the efficient conduct of governmental duties. This often produces a more limited result than ‘full reparation’ of the harm suffered.

This chapter analyses the question of whether self-defence as understood in international law, encompasses the possibility of using extraterritorial force against armed groups abroad. It examines the prohibition on the use of force, and whether the concept of ‘armed attack’ as appears in the rules of self-defence, includes attacks by non-state actors. The chapter also analyses the impact on this issue caused by the potential links between the non-state actor and the state in which the group is located.

The international wrong committed by the responsible or host State generates an international responsibility which causes the legal relationship between it and the national State of the alien to change, so that the latter could require the responsible or host State to take certain remedial measures. These remedial measures stem from State responsibility and are reflected in the general law of State responsibility. This chapter discusses general principles applicable to State responsibility that are relevant to diplomatic protection that result from the violation of international rules relating to the treatment of aliens.

This chapter surveys the roles that PMSCs have taken on and the more ambitious possibilities that have been proposed in the area of peacekeeping. There is, at present, little guidance on what functions can be outsourced in the implementation of a UN Security Council mandate. In fact, PMSCs have been engaged in a broad spectrum of activities, including some of the more ancillary aspects constituting peace consolidating measures or post-conflict measures, such as the recruitment and training of troops and the clearing of mines. At the same time, the status of PMSCs under international humanitarian law is murky at best. The situation is compounded by the questions of who ultimately bears responsibility for the company misconduct. Despite these concerns, suggestions have been made for expanded use of PMSCs, such as employing them as UN blue helmets or even as UN-mandated or UN-led troops carrying out military operations.

Prior to the development of international human rights law, violations of international law were met with responses under the law of state responsibility. This traditional body of law, particularly the part of it that concerns the mistreatment of aliens, contains useful precedents for evaluating the nature and scope of remedies afforded in state practice. Clearly, the law of state responsibility remains applicable to a human rights violation by a state in breach of an international obligation contained in a treaty or customary international law. This chapter reviews the law of state responsibility, in particular the redress afforded for injury to aliens, in order to identify general principles and precedents that may be applicable or useful in addressing human rights violations.

Chapter 1 outlines the structure of analysis in the book, and sets out the basic framework of State responsibility (principally as contemplated in the ILC Articles on State Responsibility). It introduces the applicable international legal framework, focusing on the overlapping regimes of international law which address the threat of international terrorism – in particular, the regime of international criminal law enforcement treaties which respond to particular manifestations of terrorism; Chapter VII of the UN Charter; the jus ad bellum and Article 51 of the UN Charter; and international humanitarian law. Finally, Chapter 1 defines international terrorism for the purposes of the book, drawing on elements of the international legal framework applicable to terrorism.

The jurisprudence of investment tribunals in cases brought against Argentina in the context of the country's 2001/02 economic crisis show the potential and limits of the necessity defence as codified in Article 25 of the ILC Articles on State Responsibility in situations of economic emergency. This chapter examines the emergency regimes of national legal systems for additional insights that might assist in more closely delineating a State's emergency powers in times of (economic) crisis; more particularly concerning the conditions governing the adoption of emergency measures and the consequences thereof. This is done with reference to four representative legal systems — two from common law jurisdictions and two from those under civil law: the British, French, German, and US systems.

This chapter discusses the relationship between human rights and state responsibility, based on the fundamental proposition that a breach of conventional or customary human rights or humanitarian norms leads to the international responsibility of states. The chapter aims to examine the relationship between the contemporary and the rapidly developing law of human rights and humanitarian norms and the law of state responsibility. This examination should contribute to the acceptance of human rights as an authentic and legitimate branch of international law. The discussion in the chapter happens to be largely theoretical.

The most widely available forceful method of enforcing international law is the countermeasure. Countermeasures are regulated under the law of state responsibility. They are countermeasure to otherwise unlawful measures taken in response to a prior wrong, following notice by an injured state. Countermeasures must be proportional in the circumstances. They may include armed measures so long as the force used is minimal — such as in cutting nets of fishing vessels caught fishing in violation of treaties. Because economic measures are a common form of countermeasures, countermeasures are increasingly subject to prior adjudication by the World Trade Organization's Dispute Settlement Body. Thus, they increasingly resemble law enforcement measures of national legal systems.