Beyond Bilateralism A Theory of State Responsibility for Breaches of Non-Bilateral Obligations

Abstract:International law has traditionally been conceived of as a system of bilateral obligations between states, translating into bilateral relationships of responsibility. Such responsibility is relational: it exists as a relationship between these two states, and only as such. This relational model of responsibility is perfectly logical as regards bilateral breaches, i.e. breaches of obligations that result in an injured state or states where no broader legal interests come into play. However, international law long ago ceased to be made up exclusively of bilateral obligations, if indeed it ever was. We increasingly see obligations which are non-bilateral in nature, and for which the bilateral model of responsibility simply does not work. Thus far we have lacked a theory of state responsibility for the breach of non-bilateral obligations: what such responsibility is, how it operates, and what it means for international law. This thesis develops just such a theory. The objective theory of non-bilateral responsibility contends that responsibility for breaches of non-bilateral obligations is best understood as an objective condition or state of being responsible, in breach of international law, rather than a relationship between states. It is premised not upon the injury which may have been caused by the breach, but on the breaking of international law itself: the principle of legality. This theory is elaborated and then tested against, first, the law of state responsibility, and second, the practice and procedure of international courts and tribunals. Finally, we explore the impact of this theory of non-bilateral responsibility and related developments on the shape and nature of the international legal order itself. Chapter II analyses the nature of different types of obligation (bilateral and non-bilateral), their relationship with responsibility, and with the underlying interests that are protected by such obligations. It begins by charting the development of interests and obligations in international law, from individual to common and bilateral to non-bilateral respectively. This forms the background for the discussion of obligations and responsibility which follows. The bilateral model is outlined, demonstrating the way in which bilateral obligations, when breached, generate a bilateral relationship of responsibility. Next, non-bilateral obligations are explained and categorised into structurally non-bilateral obligations, and obligations arising from community interest norms. Both categories are shown to be incompatible with a bilateral model. Finally, different theoretical approaches are tried and tested, and an objectivised theory of non-bilateral responsibility is presented as the most accurate representation of non-bilateral responsibility within international law. This theory forms the foundation from which the rest of the thesis is built. This objective theory is tested and applied in Chapter III, which focuses on the operation of non-bilateral responsibility in international law. It analyses the different stages within the international legal regime for state responsibility, and in so doing assesses the extent to which the existing law corresponds with the objective theory set out in Chapter II. Beginning with the origin of responsibility, it establishes that the essential wrongfulness from which responsibility derives, once thought of as injury, is now possessed of a more objective foundation. Next, it turns to the content of responsibility: the legal consequences incurred as a result of a determination of legal responsibility, before addressing the implementation and enforcement of responsibility. It is argued that in both these sections that, taking all this into account, not only does the state of the law support an objective theory of non-bilateral responsibility, but such a theory could indeed serve to clarify and resolve some of the inconsistencies that still mar this field of practice and study. Having explored the operation of non-bilateral responsibility at this level, i.e. the law of international responsibility, the thesis then turns to a key element of its implementation in practice: international adjudication. Chapter IV provides a detailed study of the practices and procedures of selected international adjudicative bodies. The question here is threefold: first, could international courts and tribunals (ICTs) take an approach consistent with the objective theory of non-bilateral responsibility, i.e. is it within the scope of their existing procedural rules to do so?; second, do ICTs follow such an approach?; and third, what are the implications of following such an approach for their judicial function? Focusing on three key bodies (the International Court of Justice, the International Tribunal for the Law of the Sea, and the World Trade Organisation Dispute Settlement Mechanism), Chapter IV analyses ICT practice and procedure at two key stages of adjudication: the admissibility and jurisdiction stage, and the conduct of proceedings themselves. This analysis serves to answer the first two questions. It is demonstrated that there is, for the most part, plenty scope within the procedural rules of ICTs to adopt an approach consistent with the objective theory of non-bilateral responsibility, although actual practice remains more mixed. Section 4 of Chapter IV explores the implications of this kind of approach for the international judicial function. Having examined non-bilateral responsibility from each of these three levels (theory, law of responsibility, adjudication), the final substantive chapter analyses the implications of this different form of responsibility from a systemic perspective. Chapter V examines the impact of non-bilateral responsibility on the international legal order through a lens of publicness. It asks: what is the impact of this new form of responsibility on the system of international law as a whole? To what extent has the development of non-bilateral responsibility in international law affected the shape and nature of the legal order itself? It begins by constructing a theoretical framework of publicness applicable to the international legal system. This framework is then applied to the international legal order so as to examine the relationship between non-bilateral responsibility and publicness within the international legal order. This application demonstrates that the development of objective, non-bilateral forms of responsibility has contributed significantly to a shift towards publicness in international law.

Publication year:2022

Accessibility:Embargoed

Review status:Peer-reviewed