Chapter 19 looks at two landmark decisions that were issued after the submission of the full manuscript of this book for publication: the Advisory Opinion of the International Tribunal for the Law of the Sea on climate change and marine protection, and the judgment of the European Court of Human Rights in Verein KlimaSeniorinnen Schweiz and Others v Switzerland. The authors situate these decisions within the broader context of climate litigation, examining their implications for future cases and drawing connections to the themes explored in other chapters. They demonstrate how these decisions both reflect and advance emerging best practice in climate jurisprudence, potentially inspiring further innovation based on science and rigorous legal reasoning.

International environmental law provides a useful example of a rapidly developing field of international law, and demonstrates some of the difficulties involved in resolving modern global problems within the traditional legal framework. The environment did not feature in the Charter of the United Nations and none of the constituent bodies of the United Nations was expressly given an environmental mandate. Since the 1960s, however, and reflecting a similar trend in Australian domestic law, we can trace a steady growth in international law concerned with environmental issues. Early developments primarily focussed on particular instances of harm, resulting in international agreements that deal with a single issue such as the prevention of one type of pollution or protection of a particular wildlife species. As truly global problems became apparent - for example, depletion of the ozone layer, and global warming - the international community has developed agreements that are broader and more strategic in their approach.

A number of factors must be considered when reflecting on State responsibility and they are assessed in this chapter. First, what constitutes an internationally wrongful act for which a State may be responsible? Second, what conduct may be attributed to the State? Third, what reparation must a State make in the event it is held responsible for a wrongful act? Fourth, what defences might be available to a State that would preclude a finding of wrongfulness? Related issues such as diplomatic protection, nationality of claims, and the exhaustion of local remedies are also considered in this chapter.

Chapter 15 on State Responsibility provides an in-depth exploration of the circumstances under which States can be held responsible for climate change. The author starts by outlining the fundamental principles and conditions for State responsibility under international law. Her analysis bridges the gap between international and domestic law, shedding light on how each legal sphere influences the shape and contours of State responsibility in relation to climate change. Further, she enriches her analysis with insights drawn from key climate cases that have tested the limits of State responsibility. These cases reveal how courts and quasi-judicial bodies are grappling with the challenges of attributing climate harms to State actions and omissions, and the implications of holding States accountable for these harms. In distilling emerging best practice, the author identifies innovative judicial interpretations and legal strategies that have expanded the ambit of State responsibility in climate litigation.

If, at the beginning of the twentieth century, thanks also to the influential works of Triepel and Anzilotti, the law of state responsibility came to be regarded as a distinct field, it was only in the period between the two world wars that this area of international law became the object of an intense scientific debate. The present contribution aims to assess the development of the law of state responsibility until 1945 by focusing on the events that provided a major impulse for this development, on the attempt at codification, on the case law of international courts and tribunals, and on the new general theories developed by authors such as Strupp, Kelsen, Lauterpacht, Eagleton and Ago. While the contribution aims to deal comprehensively with the law of state responsibility and its development in the period under consideration, particular emphasis will be placed on three issues: the problems associated with attribution of wrongful conduct; the consequences of international responsibility, and in particular the debate over the role of sanctions against wrongful conduct – the early signs of the emergence of a multilateral dimension of state responsibility.

This chapter covers the right to personal integrity under international human rights law. It examines the normative foundations, interpretation, scope, and international obligations related to the right to integrity, including protection against torture and inhumane treatment. The chapter discusses the legal standards for protecting personal integrity, the mechanisms for monitoring and enforcing these standards, and the role of international bodies in addressing violations. It also highlights the importance of preventive measures, victim support, and accountability mechanisms in ensuring the protection of personal integrity.

The perpetration of torture in peacetime almost inevitably involves the responsibility of a State. Indeed, State responsibility is at the heart of the international human rights law prohibition of torture, which also applies in a situation of armed conflict. In the case of torture as a war crime, a crime against humanity, or genocide, however, an entity other than a State may be directly responsible for acts of torture. Nevertheless, as a matter of general international law, given the seriousness of the violation of a jus cogens norm, in all situations the victims and survivors of torture are entitled to a remedy to help compensate for the harm they have suffered. The same principle should pertain to other forms of ill-treatment even though their prohibition is not also a peremptory rule of international law. The consequences of being tortured for the individual and his or her family can be both devastating and lifelong. Rehabilitation may help to turn a victim into a survivor, but it will never fully dispel the harm that has been inflicted. Some of the techniques developed by dedicated experts and non-governmental organizations to promote physical and psycho-social rehabilitation are referred to in this chapter.

States incur responsibility for violations of the Convention that may include failure to prosecute or to comply with other obligations under the Convention. The International Court of Justice has made it clear that States may also be found responsibility for actually committing genocide. Because the repression of genocide is erga omnes, even a State that is not injured by the violation may take proceedings against another State alleging that it has committed genocide. The general principles are set out in the Articles on State Responsibility adopted by the International Law Commission. There have been seventeen interstate applications to the Court based upon the Genocide Convention although it has yet to conclude that a State Party has committed the crime of genocide. The two main cases to date are Bosnia v. Serbia and Croatia v. Serbia. Three cases are currently pending, Gambia v. Myanmar, Ukraine v. Russia and South Africa v. Israel. The Court has made important provisional measures orders in some of these cases.

Chapter 7 sets out the key components of State responsibility under international law and then uses a series of case studies to demonstrate that responsibility in practice. Responsibility for a State’s negligent failure to prevent a terrorist attack looks at the acts and omissions of the Russian authorities with respect to the school siege at Beslan in 2003. Three cases have been chosen to exemplify the direct perpetration of terrorism by a State. The first case is the bombing by French agents of the Greenpeace boat, Rainbow Warrior, by French agents in New Zealand in 1985. The second involves certain acts of Syrian authorities following the protests related to the Arab Spring, in particular the widespread and systematic torture and summary execution of opponents of the regime. The third case is the conduct of Russian forces in Ukraine following its invasion on 24 February 2022. Examples of State responsibility as accomplices to acts of terrorism are the responsibility of Liberia for the actions of the Revolutionary United Front (RUF) in neighbouring Sierra Leone during the civil war and the potential responsibility of Syria for the murder of former Lebanese Prime Minister, Rafik Hariri, in Beirut on 14 February 2005.

This chapter explores how the interpretation of customary international law (CIL) can be shaped by the underlying premises and political values of a system. The argument it develops focuses on how investor–state arbitration has interpreted the CIL law rule establishing that the actions of state-owned enterprises will be attributed to the controlling state, as expressed in Article 8 of the Articles on the Responsibility of States for Internationally Wrongful Acts.

This chapter provides a detailed account of the impact that the Commission’s work has had in shaping the Court’s case-law. In addition to surveying and classifying all those instances in which the Court has to date been ready to refer expressly to the Commission’s output, the chapter demonstrates that reliance on the Commission’s work has often been more implicit. The question is then posed as to the basis for such recourse and the advantage afforded by it.

This chapter addresses in detail those rare occasions in which the Court and the Commission have adopted differing positions on the legal questions before them. In exploring both the potential for such disagreements and how they have been handled, the chapter shows that these instances attest to the strength of the inter-institutional relationship rather than undermine it. It also points out, however, that harmony comes at a cost.

This chapter examines the unparalleled influence that the Court’s decisions have had on the Commission’s codification and progressive development of areas of the law under its consideration. It illustrates not only the great extent to which many of the Commission’s propositions have borrowed their authority from the pronouncements of the Court, but also the significant impact of the latter on the Commission’s choices concerning terminology and programme of work. The chapter further demonstrates the Commission’s conscious efforts to support the Court’s cause more broadly, including by encouraging the expansion of the Court’s jurisdiction and by promoting the doctrine of the sources of international law enshrined in its Statute.

This Chapter focuses on governmental use of private military and security companies (PMSCs) to evade the law of state responsibility, using offering as a case study of Russia’s deployment of a shadowy corporation known as the Wagner Group as a case study. The cChapter then suggests ways in which we might rethink the law of state responsibility in order to respond to the increasing threat of this sort of hybrid warfare. Drawing from scholarship on global legal pluralism, the cChapter argues for a less formalist and more functionalist analysis of the law of state responsibility. I I n the context of hybrid war, formalist conceptions of the state allow governments such as Russia to skirt state responsibility solely because there may be no formal contract between Russia and a PMSC such as the Wagner Group. One possible response then is to reinterpret Article 8 of the Articles of State Responsibility so that it looks at the real functional ties between a state actor and a PMSC, along with the “governmentality” of the function the PMSC performs.

As state ownership of private firms grows, morphs, and globalizes, states increasingly channel their influence through the financialized markets. The ensuing merger of the state’s commercial and sovereign roles suggests that state ownership is, again, becoming a vector of sovereign authority. This chapter analyzes the international legal system that has developed around surging state ownership. It suggests that the legal construction of distinctive “shareholder identities” in international economic law plays a key role in this complex regulatory matrix. Specifically, the chapter focuses on how arbitral tribunals adjudicating claims arising from international investment treaties use attribution, a doctrine of customary international law, in creating, maintaining, and disciplining state shareholders. Arbitral tribunals use the analytical category of the state shareholder in order to delineate and construct state and company identities and to understand the economic, political, and legal implications of those identities in the the global economy. Accordingly, the interactions between substantive international economic law and the law of state responsibility form important, but underappreciated, elements of this constitutive process, which comes to affect the institutional design of state shareholding and disincentivize hands-on control over state-owned entities.

This volume offers a new point of entry into enduring questions about how the law conceives of states and firms. Because states and firms are fictitious constructs rather than products of evolutionary biology, the law dictates which acts should be attributed to each entity, and by which actors. Those legal decisions construct firms and states by attributing identity and consequences to them. As the volume shows, these legal decisions are often products of path dependence or conceptual metaphors like “personhood” that have expanded beyond their original uses. Focusing on attribution allows the volume to consider together an array of questions about artificial entities that are usually divided into doctrinal siloes. These include questions about attribution of international legal responsibility to states and state-owned entities, transnational attribution of liabilities to firms, and attribution of identity rights to corporations. Taken together, the book highlights the artificiality of doctrines that construct firms and states, and therefore their susceptibility to change.