Causation and International State Responsibility
SHARES Research Paper 07 (2012), ACIL 2012-07.
This work studies causation in the law of international State responsibility. It is submitted that the absence of causation as an element of the internationally wrongful act owes more to the structure of international law, than to the inadequateness of causation as a conceptual and legal construct to ascribe international responsibility. The lack of causal analysis for breach owes to the subsidiary role of primary rules in the process of determining the existence of an internationally wrongful act. Primary rules are even less relevant for the determination of reparations, which stem from injury arising from the international wrong. Moreover, international law carries out the attribution of wrongful conduct pursuant to the agency theory, which operates en lieu of causation. The absence of causal analysis from the determination of internationally wrongful acts is the result of consistent State practice, based on a clear distinction between the national and international legal orders. International responsibility is not domestic liability writ large; it is international accountability of international actors in the international community. The differences that international responsibility bears with domestic legal orders respond to the legal articulation of an international system of rules, distinct from the legal orders of the sovereign subjects it addresses. Causal analysis is only relevant for the assessment of damage and subsequent reparation of breaches of international law.