Tag Archives: ARSIWA

19 May 2014

Shared Responsibility and the Federal State

Federal States in international law

To the international lawyer at least, the idea of a federal State, which distributes its sovereign competences between different internal orders of government, is generally irrelevant: how a political community structures its internal relations has nothing to do with how its sovereignty as a State is exercised externally.

The classical international legal fiction is that a State is a ‘black box’: whatever internal arrangements may have been devised, the federal State alone is responsible for international relations, and alone is a subject of international law. The ‘black box’ metaphor is rooted in the very idea of State sovereignty, as the Permanent Court stated in its very first judgment, in the Case of the S.S. Wimbledon: the capacity ‘of entering into international relations is an attribute of sovereignty’.[1] But it is not merely a metaphor or fiction: the centralisation of the capacity to act externally has been constitutive of a great many theories about the nature of international law as a system, not least Article 27 of the Vienna Convention on the Law of Treaties, which precludes that a State may evade its international obligations by invoking its internal law.

Despite this, the research question arose: to what extent are the acts of a federated entity cognised at international law? The question is relevant from both municipal and international perspectives. There are indeed several federal States whose component entities act on the international plane. (more…)

23 October 2013

Should the ILC Draft Articles be turned into a Convention?

Delegations meeting on 21 October at the Sixth Committee of the General Assembly were unable to agree on whether steps should be taken to transform the ILC Draft Articles on the Responsibility of States into a Convention.

Some delegates considered that ‘a convention would create legal certainty’ and that ‘[f]urther codification of the articles would strengthen multilateralism’, but others insisted that ‘it [was] more important to preserve the authority of the articles in practice than to codify them in a convention that may not achieve universality’ and that ‘opening them up to negotiation might upset the delicate consensus that currently existed’.

In any case, ‘virtually all delegates agreed that the draft articles were a key contribution to the development of international law and being broadly used as reference by international and national tribunals and Governments’.

Source: United Nations General Assembly | GA/L/3463 | Sixty-eighth General Assembly | Sixth Committee | 15th Meeting (AM) | Noting Key Role in International Law, Sixth Committee Delegates Disagree over ‘Fate’ of Drafts on State Responsibility, Diplomatic Protection | 21 October 2013