Internationally Wrongful Acts in the Domestic Courts: The Contribution of Domestic Courts to the Development of Customary International Law Relating to the Engagement of International Responsibility

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INTERNATIONAL LAW AND PRACTICE: Symposium on Domestic Courts as Agents of Development of International Law

* MA (Cantab), LL M (NYU), Dip. Int. L. (Cantab.); Member of the Bar of England and Wales; Tenant, 13 Old Square Chambers, Lincoln's Inn, London [

[email protected]

]. This is an expanded and updated version of a paper given at the Third ILDC Colloquium, held at the University of Glasgow on 19 and 20 May 2011. I am grateful to the organizers (Christian Tams, Antonios Tzanakopoulos, Erika de Wet, and André Nollkaemper) for the kind invitation to speak. Thanks are due to Dr Silvia Borelli, who patiently read various drafts of the present paper and provided invaluable comments. The usual disclaimers and caveats apply.

1.

Introduction

The present article aims to assess the contribution of domestic courts to the formation and development of the customary international law of responsibility relating to the engagement of international responsibility (i.e. when an internationally wrongful act is to be taken to have occurred).¹In doing so, it focuses in particular on the relevant rules under the law of state responsibility, although reference is also made as appropriate to a number of domestic decisions that have considered questions of the international responsibility of international organizations.

For these purposes, the rules as to engagement of international responsibility may be understood as referring essentially to the rules codified in, and constituting Part One of the Articles on Responsibility of States for Internationally Wrongful Acts, adopted on second reading by the International Law Commission in 2001 ('the ILC's Articles on State Responsibility' 'the Articles' or 'ARSIWA'),²as well as the corresponding provisions contained in Part Two of the ILC's Articles on Responsibility of International Organizations for Internationally Wrongful Acts ('the ILC's Articles on Responsibility of International Organizations', or 'ARIO'), adopted by the Commission upon second reading in 2011.³

Concentrating for these purposes on the Articles on State Responsibility, in addition to the familiar basic, foundational principles of the customary law of state responsibility contained in Chapter I,⁴the remaining provisions contained in Part One of the Articles include detailed rules governing:

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the situations in which conduct may be attributed to a state or international organization for...