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Duality of Responsibility in International Law: The Individual, the State, and International Crimes de Thomas Weatherall

Duality of Responsibility in International Law: The Individual, the State, and International Crimes: Theory and Practice of Public International Law, cartea 5

Autor Thomas Weatherall
en Limba Engleză Hardback – 17 mar 2022
The responsibility of individuals and that of States under international law are generally regarded as independent systems. Each is a distinct form of responsibility governed by a different set of rules. The separability of these two forms of responsibility does not, however, dictate that they necessarily operate in isolation from one another. To the contrary, linkages between the fields of individual and State responsibility define the parameters of the principle of duality of responsibility in international law. Duality of Responsibility in International Law offers a roadmap to help navigate this complex legal space.
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Specificații

ISBN-13: 9789004505360
ISBN-10: 9004505369
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Theory and Practice of Public International Law

Notă biografică

Thomas Weatherall, J.D., Ph.D. (Cantab), M.Sc. (Oxon), is an Attorney-Adviser in the Office of the Legal Adviser of the U.S. Department of State. The views expressed herein are the author’s own and not necessarily those of the Department of State or the U.S. Government.

Cuprins

Foreword

Preface

Abbreviations

About the Author

Table of Cases

Introduction

part 1
Parameters of Responsibility
1Subjects of Responsibility under International Law
a The State as a Subject of International Law

b The Individual as a Subject of International Law

c Duality of Responsibility in International Law


2Primary and Secondary Rules
a Primary Rules
iIndividual-Directed Rules

iiState-Directed Rules


b Secondary Rules
iDistinguishing Secondary Rules of Individual and State Responsibility

iiSecondary Rules of Individual Responsibility

iiiSecondary Rules of State Responsibility

ivAssociated Secondary Rules
1 Consequences

2 Defenses

3 Jurisdiction

4 Immunity




part 2
Breach
3Crimes under International Law
a Elements of Individual Criminal Responsibility
iThe Objective Element

iiThe Subjective Element


b An Element Approach to Crimes


4Internationally Wrongful Acts
a Elements of State Responsibility

b Two Categories of Primary Rules

c Concurrent State Responsibility
iPeremptory Norms and their Correlates

iiActa Jure Imperii

iiiCrimes of States

ivAggravated State Responsibility


d Complementary State Responsibility
iObligations Erga Omnes

iiImplications of Distinct Primary Rules
1 International Crime as a Prerequisite

2 Attribution of International Crime not a Prerequisite

3 No Mitigation of Concurrent Responsibility for an International Crime



5Breach and the Interaction of Primary and Secondary Rules
a Relationship between Elements of Individual and State Responsibility

b Sources of Law

c Standards of Proof


part 3
Attribution
6Rules of Attribution in International Criminal Law
a Modes of Attribution
iCommission
1 Direct Perpetration

2 Indirect Perpetration

3 Joint Criminal Enterprise


iiEncouragement
1 Planning

2 Ordering

3 Instigating


iiiAssistance
1 Aiding and Abetting

2 Assisting in Commission of a Crime by a Group


ivSuperior Responsibility

vInchoate Offences
1 Attempt

2 Conspiracy

3 Incitement


b Conclusions
iRelevance to Attribution in the Law of State Responsibility

iiIdentifying the Parameters of Modes of Attribution

iiiMethodology and Sources of Law


7Rules of Attribution in the Law of State Responsibility
a Modes of Attribution
iState Organs

ii De Facto State Organs

iii Ultra Vires Conduct

ivOther Circumstances in which Conduct may be Attributable to the State
1 Instruction of the State or under its Direction or Control

2 Exercise of Governmental Authority in the Absence of Official Authority

3 Insurrection

4 Conduct Acknowledged and Adopted by the State


b Conclusions
iSecondary Rules of General Applicability

iiActions and Omissions


8Convergence and Divergence in Attribution
a Principles of Attribution: Culpability and Objectivity Distinguished

b Double Attribution

c International Crimes, Official Capacity, and Attribution to the State

d Crimes under International Law Performed in a Private Capacity

e Attribution to the State and Individual Immunity Ratione Materiae


part 4
Responsibility
9Consequences
a Consequences of Individual Criminal Responsibility
iPurposes

iiPenalties


b Consequences of an Internationally Wrongful Act
iConsequences for the Responsible State
1 Cessation

2 Reparation


iiConsequences Beyond the Responsible State
1 Serious Breaches

2 Third-State Consequences


c Non-Recognition and Non-Maintenance

d Cooperation
iiiStanding
1 Common Legal Interest in Performance

2 Beneficiaries of Invocation of Responsibility


e Differentiation in Forms of Responsibility and their Consequences


10Defenses
a Exclusion of Responsibility for Crimes under International Law
iFailure of Proof

iiJustification and Excuse


b Circumstances Precluding Wrongfulness for Internationally Wrongful Acts

c Points of Contact in Avoidance of Responsibility


11Jurisdiction
a Jurisdiction over Individuals under International Law

b Jurisdiction over States under International Law

c Divergence in Rules of Jurisdiction


12Immunity
a Immunity of Individuals under International Law
iImmunity Ratione Personae
1 International Courts and Tribunals

2 Domestic Courts


iiImmunity Ratione Materiae
1 International Courts and Tribunals

2 Domestic Courts


iiiInviolability


b State Immunity under International Law

c Corresponding Divergence in Rules of Immunity


part 5
Duality of Responsibility in International Law
13The Legal Framework of Duality of Responsibility
a Individual Responsibility

b State Responsibility

c The Relationship Between Individual and State Responsibility
iBreach

iiAttribution

iiiResponsibility


14Conclusions


Index