Invoking State Responsibility in the Twenty-First Century

This essay reviews the articles on the invocation of state responsibility, analyzes them in historical context, and notes where they represent progressive development of international law. It then surveys a wide range of contemporary situations where individuals, other nonstate entities, and international organizations invoke state responsibility by initiating judicial or other formal complaint proceedings. The essay concludes that, in light of this contemporary practice, the articles usefully advance the codification and development of international law but do not deal sufficiently with the right of individuals and nonstate entities to invoke the responsibility of states

Cyber Attribution and State Responsibility

We might expect international law to specifically address cyber attribution requirements due to the significance of attribution in framing the legal responsibility of States and the boundaries of responsive actions by victim States. However, there is little international law of cyber attribution, and what law there is exists largely by implication. Likewise, there is only a murky and highly contested law of State responsibility that theoretically constrains the vast majority of State-sponsored cyberattacks. Because victim States cannot engage in countermeasures unless they attribute a cyberattack to a State, attribution can serve simultaneously to constrain and empower victim States. However, the lack of a common understanding about whether cyber attribution is required—much less what evidence suffices for attribution of a cyberattack for international law purposes—combined with the absence of consensus legal rules to limit cyber intrusions, has helped render the entire international legal response to cyberattacks weak and largely ineffective. Going forward, States and the international community should support public cyber attributions and address what legal or evidentiary standards must be met to attribute responsibility for a cyberattack to a State. A viable cyber attribution regime is a missing but key component for States to overcome the Wild West cyber environment that we live in

State Action and State Responsibility

This Article suggests that if state action has been a conceptual disaster area, this condition can be improved by a rigorous application of common sense. The courts should find what is misleadingly called "state action" when, and only when, the state can properly be said to bear responsibility, of the right kind and degree, for the under- lying act, condition, or event complained of by the plaintiff. To greatly oversimplify, there is state action where there is state responsibility. The novelty of this approach does not lie in the mere reference to the idea of governmental responsibility. The cases refer to the idea of responsibility with some frequency, as do some commentators. While it has occasionally been explicitly denied that state responsibility is central to "state action," the cases and the academic literature more often simply refer to the idea of state responsibility generally without developing the idea at all. It should not be surprising, therefore, that the inquiry remains a conceptual disaster area

Disarming State Action; Discharging State Responsibility

This essay examines doctrinal potential consequences arising from the Supreme court’s Second Amendment jurisprudence from McDonald v. Chicago, and its predecessor, District of Columbia v. Heller, when considered in conjunction with its due process case of Town of Castle Rock v. Gonzales. McDonald and Heller identify a right to self-defense rooted in the Second amendment’s “right of the people to keep and bear arms.” In identifying this right, the Court insists on the special character of “home” and private space, while obscuring the violence perpetrated by cohabitants of the home and the perpetration of, or acquiescence in, violence by state actors. Since the decision in Gonzales allows a state to avoid enforcing its own orders of protection and discharge its public responsibility without action, the pronouncement of a right to defend self under the Second amendment implies that self-help with firearms is a rational measure citizens can take to ensure their own safety. The combined effect of the Court’s seemingly unrelated decisions in Gonzales, Heller, and McDonald is the valuation of rights of autonomy and individual action — specifically, gun ownership and gun usage — over rights to personal security — specifically, freedom from gun violence

State Responsibility for International Bail-Jumping

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international law of jurisdiction. It surveys the possible remedies available to both injured states and, in light of the fact that neither state has sought any such remedy, examines possible remedial routes for the victims of the Saudi nationals’ crimes. It remarks upon the utter failure of either Canada or the United States to address these acts, concluding that such wilful neglect both corrodes sovereignty and undermines the will to address sexual crimes

ARCHIPELAGIC STATE RESPONSIBILITY ON ARMED ROBBERY AT SEA

Recent hijackings to Indonesian ships on the southern waters of the Philippines have raised alarming concerns not only from the involving states but also other countries in the region. Such crimes at sea frequently occur in the area of the coastal states in this case archipelagic states such as Indonesia and the Philippines. This privilege as archipelagic states automatically extends their sovereignty and jurisdiction to enforce their national legislations. As a corollary, responsibility to ensure the security and capacity to protect and supervise territory should be carefully examined when looking at the current situations. This paper examines the responsibility of archipelagic states in the event of sea armed robbery within their jurisdiction