Working DRAFT of Abstract, Alan Tzvika Nissel, A History of State Responsibility
Abstract of Project
State
responsibility is the doctrine that regulates international enforcement
actions. Among international lawyers, there is a shared sense of mystery about
State responsibility. While the doctrine clearly guarantees the enforceability
of international law, its practice consistently languishes from a lack of
international policemen. History is one lens through which to view this
paradox. In this study, I describe the three most influential efforts to
establish a legal standard for international enforcement actions: U.S.
diplomatic practice, German legal theory and U.N. codification. In the
late-nineteenth, lawyers in the U.S. State Department turned to international
tribunals to redress alien injuries. These lawyers relied on international law
to justify their legal intervention. Latin Americans, who were frequently the
respondents of such claims, disputed the relevance of international law to its
treatment of aliens; to them, alien protection was essentially a domestic
affair. However, by the twentieth century, a U.S. practice of arbitration had
established that States could be held responsible for breaching their
international duties to protect aliens. The resulting awards were professional
but haphazard. States were ordered to pay reparations for alien injuries, but
why and how much they had to pay remained largely unarticulated. The first systematic
treatment of State responsibility surfaced in late-nineteenth century Germany.
These early writings were extrapolations from domestic principles of law rather
than inductions of international awards. German lawyers viewed the U.S.
practice of international arbitration as ad hoc settlements of private disputes rather than as the adjudication of
public disputes. Thus, the German approach to State responsibility was not
restricted to the field of alien protection in particular; it provide for the
preconditions of international liability in general. When the U.N. undertook to
codify the field, it chose to base its efforts on German theory rather than on the
U.S. practice. This strategy divided State responsibility into general and
specific parts. Generally, enforcement actions were subject to the U.N.
doctrine. Exceptionally, a specific practice (e.g., alien protection) was
permitted to continue as lex specialis.
Contrary to many commentators, I see no crisis in this result. No singular
doctrine has ever encapsulated the practice of international enforcement. Since
the 1870s, international lawyers have employed State responsibility as a
pliable concept to suit particular ends. By providing these perspectives, I
hope to illustrate how three groups of lawyers – practitioners, theorists and
doctrinalists – have been able to cope with the enduring mystery of State
responsibility.
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