Mending Femurs
As long as humans have occupied this earth, they have fought and sought to make amends. A student once asked Margaret Mead (1901–1978), an American anthropologist, when exactly civilization began. In a response that must have surprised her student, Mead said that the history of socialization began 15,000 years ago, the age of an excavated human skeleton containing a broken femur that was healed. To Mead, the fact of the mended femur established that humans had begun caring for one another. Without the social support to mend it, a broken leg was a death sentence carried out by roaming predators. As intertribal contacts increased, humans developed further rules of cooperation such as the fair treatment of travelers. Abraham of Ur, the patriarch of three world religions, was known for his generosity to strangers. Upon the arrival of guests to his tent, Abraham is said to have washed their feet, provided cooked food and offered a place to sleep.Footnote 1 Over time, the custom grew into a broader duty of hospitality imposed upon individuals and communities alike.
Fast forward to the modern era of nation-states when governments employed international law to mandate a minimum standard of care to foreigners. It was the legalized duty of hospitality that would form the basis of state responsibility, the modern set of enforcement rules that is the subject of this study. This history is an account of how a handful of American and European lawyers established the first mechanisms of legality to hold states accountable for failing to mend the broken femurs of foreigners.
A Sacred Doctrine
To international lawyers, state responsibility is a sacred doctrine. As the legal framework that determines whether a state has breached its international duties, and what can be done about such a breach, the existence of state responsibility underpins our hope of ordering the world through law. It is one of the most frequently referenced doctrines of international law. Yet, unlike other international legal norms, state responsibility is a relatively young one. Whereas the concept of state sovereignty was in wide usage since the sixteenth century,Footnote 2 the term “state responsibility” was rarely used before the late nineteenth century and had no effective meaning prior to 1930.Footnote 3 How could it be that such a fundamental doctrine of international law is of such recent origin?Footnote 4 The law of nations has existed for as long as there have been nations. But there was never any technical framework to regulate international disputes until the expansion of US and German territories in the nineteenth century.
I trace the creation of state responsibility through three narratives: (1) the US arbitral practice in the New World; (2) the German theorization of public law in the setting of its national unification and (3) the institutional effort to codify state responsibility within world bodies. As a legal framework for resolving interstitial disputes, state responsibility was created sometime in the late nineteenth century. The US and Germanic conceptions of state responsibility, however, were very different. When the League of Nations, and later the United Nations (UN), undertook to codify the field, they had two credible sources upon which to base their work: (1) The US practice of alien protection and (2) German theories of public international responsibility. The UN ultimately codified state responsibility based on German theory, but international practice is still mostly in the field of alien protection.Footnote 5 One was codified by the UN and the other continues to be practiced ad hoc. According to both the narrow (US) and broad (UN) approaches, the existence of state responsibility asserts the legitimacy of international law as the appropriate forum for international dispute resolution.Footnote 6
In sum, this history is a phenomenology of and not a treatise on state responsibility. State responsibility is impossible to define. Despite the legal citations to and commentaries associated with the doctrine, it is important to recognize at the outset of this project that there is no objective thing called “state responsibility.”Footnote 7 This history is but a series of stories about how merchants and their advocates used legalism to protect private investments abroad. And it is about the unintended consequences of this turn to legalism on fundamental doctrines of international law.
Table 1.1 State responsibility in books (1800–2008)Footnote 8
Of Modern Origins
The existing literature contains no monographs on the origins of state responsibility.Footnote 9 This is the first book-length attempt to provide a history of the topic.Footnote 10 What explains this apparent lack of attention to such an important doctrine of international law? One reason is that there is a certain level of inevitability to the concept.Footnote 11 The idea that a person (or nation) should be responsible for breaking the law is as old as lex talionis and inherent in the idea of law as law.
When the twentieth-century dean of legal positivism H. L. A. Hart (1907–1992) set out to write a clear introduction for first-year law students, his resulting work, The Concept of Law, became one of the most influential law books of the twentieth century. For Hart, what is critical to the concept of law is its consequentiality. There must be socially acceptable and predictable consequences when the law is broken: “it has consequences definable in terms of the rules, which the system enables persons to achieve.”Footnote 12 In international law, if states were not held accountable for breaching their international obligations, “then it would be questionable whether anything worthy of the name of international law – and a fortiori international responsibility – would be left.”Footnote 13
A second reason why the history of state responsibility is so understudied is the complexity of the concept. As the late James Crawford (1948–2021) has written, “[r]esponsibility has a bewildering array of meanings, each of which occupies a distinctive role in legal and moral reasoning.”Footnote 14 State responsibility exercises multiple functions in the institutionalized regime of international law. Its rules determine the following:
1. Existence of an attributable international wrong;
2. Extent to which a State is liable for an international wrong; and
3. Manner in which a State may act to remedy that international wrong.
These multiple roles of responsibility – culpability, imputability and implementation – are unique to international law. In domestic law, culpability rules govern the extent to which the law can impute a civil or criminal wrong to the respondent. Punishment generally reflects a level of fault.Footnote 15 A legal remedy will generally be justified to the extent that it “fits” the wrong that was done. It is the task of law enforcement institutions to safeguard the justness of domestic law by implementing legal acts consistently and in a like manner. This is the rule of law.
Considering the function of responsibility in the domestic law highlights the problem of responsibility in international law.Footnote 16 There are no formal civil or criminal distinctions of international law. The extent to which civil and criminal (or even private and public) remedies are available is a matter of ongoing debate.Footnote 17 The nature and purpose of state responsibility are equally open to controversy. Are they based on utilitarian or deontic principles? Are they limited to compliance, or do they extend to retributive elements? Each adjudicator is left to select the particular nature of the responsibility to apply on a case-by-case basis – with little guidance from positive sources. Indeed, even the nomenclature of “state responsibility” conflates the distinction between a state’s duties and the legal consequences of breaching them. International lawyers use “responsibility” to mean either and both.Footnote 18
A related explanation for the lack of attention to the doctrine’s history is the confusion over its applicability. In 2001, the International Law Commission of the UN (ILC) finalized its draft articles on state responsibility (Draft Articles).Footnote 19 The lengthiness and inclusiveness of this international codification process commanded considerable attention from law scholars, many of whom believe that the resulting code has attained the reified status of customary international law.Footnote 20 But this acceptance has led to a misconception about the relevance of the ILC rules to actual disputes.Footnote 21 The Draft Articles were intended to apply only by default, where no other special laws hold force.Footnote 22 The ILC code does not apply when there are other, specific rules that do pertain, based on the general principle of lex specialis derogat legi generali; namely, when in conflict, specific rules trump general ones.Footnote 23 The fact that the ILC doctrine is residual in natureFootnote 24 seems to have been overlooked in the literature.Footnote 25 There is, thus, a duality of state responsibility doctrines: one general and codified, and the specific and largely uncodified.
Since most of the academic attention has focused on the UN, its codification of state responsibility has become identified as the doctrine of state responsibility,Footnote 26 and its history as the history of state responsibility. However, the majority of doctrines of state responsibility – including those regarding the use of force, regional human rights regimes, environmental law, consular law and alien protection – remain either expressly or implicitly outside its purview.Footnote 27 Recently, international scholars have begun to question the relevance of the ILC Draft Articles to all international disputes.Footnote 28 Some have critiqued its eloquent simplicity as breeding professional (if not intellectual) laziness.Footnote 29 Indeed, the Draft Articles are clearly written and seem easy to apply. Of course, they are not – state responsibility, as Crawford noted, is a particularly loaded doctrine that international courts and tribunals have inconsistently applied in practice.Footnote 30
This book is a critique of the ILC doctrine as well as of the existing academic literature in two important ways: (1) I trace the legal doctrine of state responsibility to its pre-institutional origins in nineteenth-century US and Germany and (2) I explain that development in terms of a duality of doctrines. I note that the existing literature’s focus on the ILC and its unified doctrine of state responsibility makes it difficult to appreciate how to apply the law to general as well as to specific situations, as I will explain in the next section. As such, this book is a counter-history of sorts regarding state responsibility – one that complements current accounts of the codified doctrine, but also one that helps situate it within the overall spectrum of international law enforcement theories. It will provide a broader context for studying the history of this continuously practiced field of international law.Footnote 31
An Exceptional Nature
It is easy to appreciate the exceptional nature of state responsibility. To begin with, international law itself is often perceived as somehow different from normal, domestic types of law.Footnote 32 Generally, for law to be law (e.g., something more binding and different than social mores), it needs to be enforced by a sovereign power with the authority and ability to do so. Philosophers from the English legal theorist John AustinFootnote 33 (1790–1859) to contemporary Israeli positivist Joseph RazFootnote 34 (1939–2022) have noted international law’s special character. However, even granting the “law-ness” of international law, enforcing that “law” is quite another matter. How is state responsibility to be implemented in a world without an effective international judiciary or police force? A rule-of-law environment is a society that is constrained by a framework of predictable rules. Disputes are resolved according to those rules, and usually resolved when they are followed.Footnote 35
But international disputes are relatively infrequently resolved by the UN or the International Court of Justice (ICJ or World Court). Most are settled on a case-by-case basis by diplomats or international arbitrators.Footnote 36 International claims are resolved in a less rule–like manner than the otherwise traditional doctrine of state responsibility would provide. The process is inherently fluid and dependent upon state consent. It operates by hired attorneys using fountain pens and wearing tailored suits rather than civil servants with their familiar gowns and gavels.
Viewed through the lens of international law, the world is flat. There is no hierarchy of governing entities overseeing states to ensure their compliance. This horizontality inevitably fosters an environment of auto-interpretation,Footnote 37 the pre-modern environment in which states were constantly at risk of other states unilaterally imposing their rights when and how they so desire.Footnote 38 Today, international law generally requires lawyers rather than soldiers to resolve international disputes. This is by necessity as there is no international court or police to enforce the law of nations. It is this aspect of international life that is most often critiqued as its structural weakness. As the Finnish law professor Martti Koskenniemi writes, it is precisely this difficulty that “always made the distance between domestic and international law seem greatest.”Footnote 39
With this gulf in mind, Sir Hersch Lauterpacht (1897–1960) drafted the legislative agenda for the newly formed International Law Commission in 1948. He recommended codifying state responsibility as a kind of ersatz criminal law, a regime of international sanctions modeled as similarly as possible on its domestic doppelganger.Footnote 40 The ILC was to establish a doctrine of state responsibility that provides for the possibility of international law, one that could control international relations by binding nations to an international rule of law. This was not, of course, a modest goal. And the first Special Rapporteur of state responsibility, Cuban diplomat Francisco “Paco” V. García Amador (1917–93), was unable to secure a majority view within the newly formed ILC.
A decade later, however, the second Special Rapporteur, Roberto Ago (1907–95), was able to implement Lauterpacht’s view by reconceiving the codification project of state responsibility as a set of abstract principles that could regulate any occurrence of international wrong; it would implicitly depend on the content of whatever primary obligation was alleged to have been breached. Ago’s abstract division between primary obligations and secondary responsibilities was broadly accepted within the ILC; if a government fails to meet its primary obligation to protect aliens in its territory, this automatically triggers its secondary responsibility to repair that wrong. In Ago’s worldview, when one state violates one international law, all states have an interest in ensuring that the responsible state will be brought to justice. A state’s responsibility is not owed just to the directly injured state; it extends to all states because of their innate interest in international order. It was this sweeping idea of state responsibility as a set of rules that was generally applicable to all nations for all nations that was codified by the UN between 1948 and 2001.Footnote 41
A Fragile Norm
As the general legal basis upon which states could assert their international rights, state responsibility has come to represent both the potency as well as frailty of international law. The everyday practice of state responsibility continues to reflect the disparity of power possessed by states; the impossibly complex matter of law enforcement still depends on a state’s ability and willingness to compel compliance.Footnote 42 North American states are, not surprisingly, more likely to be plaintiffs and South American states defendants in such actions. This inequality has posed obvious challenges to the legitimacy, and illustrates the inherent fragility, of the doctrines. On the one hand, the code is broadly recognized as a juridical milestone.Footnote 43 It is rare for an international court or tribunal to issue a decision or award without citing to the Draft Articles.Footnote 44 On the other hand, it does not seem to actually regulate state behavior. The force of the ILC code seems more in its symbolic than its predictive nature. While the doctrine of state responsibility is applicable to any violation of international law in theory, it does not seem to prevent the most notorious international violations – or even portend their consequences – in practice. Where was it in the aftermath of the 9/11 attacks that occurred just after the ILC finalized its codification of state responsibility on August 9, 2001?
Parallel Histories
The duality of state responsibilityFootnote 45 is reflected in its parallel histories. One arc follows the pre-codified history of the doctrine from US diplomacy to European theory in the nineteenth century; the other tracks the effort to legislate a code of international enforcement within world bodies in the twentieth century. There is no singular history that covers both paths of its journey. While there are several overviews of state responsibility in the literature, the historical accounts within these works largely fixated on the ILC’s five-decade effort to codify the field.Footnote 46 This is not surprising given that general understanding that, by default, international law enforcement is governed by the ILC doctrine.Footnote 47 However, it is an unfortunate oversight since the ILC Articles are not – nor were they intended to be – the final word on state responsibility.Footnote 48
Due to the lack of historical scholarship on this topic, in researching this project, I found it challenging to systematically follow a particular historiographical approach. What I can state categorically is this is no attempt at providing the history of state responsibility, as though the topic is some stable object that can be “found” and provided to readers.Footnote 49 This book employs a quilted historical approach relying upon many methodological threads: Biographical,Footnote 50 Chronological,Footnote 51 Critical,Footnote 52 Diplomatic,Footnote 53 Epochal,Footnote 54 Geological,Footnote 55 Political,Footnote 56 Sociological,Footnote 57 etc. On the historiographical continuum, examining realist and idealist accounts of international law, I have borrowed from both with an appreciative but wary eye.Footnote 58 Realist histories tend to focus on state power,Footnote 59 whereas geopolitical and idealist histories concentrate on lawyers, philosophers, and institutions.Footnote 60 To date, historical writing on state responsibility has been the purview of idealists, those with a distinctly legalist bias, giving little validity towards the pragmatic nature of diplomacy. Chapters 2, 3 and 5, which emphasize the importance of particular power structures, are a counterpoint to such views.
An influential example of the doctrinal pull of idealist accounts is Sir Ian Brownlie’s System of the Law of Nations: State Responsibility Part I (1983).Footnote 61 The former Chichele Professor at Oxford University, Brownlie (1932–2010) describes state responsibility as inherent to international society:
The essential idea of responsibility is simple and has its basis in religious thought or secular morality of which law is the outwork … Consequently, responsibility is an inherent element in any community based upon some system … of morality, religion or law, or several of these.Footnote 62
To Brownlie, the idea of responsibility is both unitary and innate, no matter its form or function (penal, compensatory, strict, domestic, international, etc.). He suggests that only an intellectual curiosity – and a childlike one at that – would lead one to investigate the historical origins of state responsibility. More interestingly, Sir Ian actually wrote a paper on the history of state responsibility, except it was not a history at all, since
‘Tracing the origins’ of legal concepts and institutions can be an artificial and practically fruitless endeavour … In the case of state responsibility, the task is complicated by two peculiarities of the genre. The first lies in the fact that the concept of responsibility is both very simple and yet sophisticated. It is both a fundamental moral idea common to laymen and lawyers, and a concept which legal experience calls for considerable study and refinement, involving nice problems of measure of damages, liability of ‘moral damage’ and so forth.Footnote 63
While I have been mindful of various approaches to the histories of diplomacy and international law, I have customized my methodology to suit the needs of this study.Footnote 64 I have presented this history as three overlapping narratives, reflecting how three groups of professional lawyers – practitioners, philosophers and publicists – have coped with the problem of state responsibility in international law.Footnote 65 A common theme is the motivation to show the consequentiality of breaching international law. American, German and other lawyers debated the relevance of law to the resolution of international disputes. By the 1930s, a rough consensus had emerged about the existence of an international doctrine that governs the resolution of (at least some) international disputes.
Three Observational Standpoints
That state responsibility existed as a doctrine became increasingly uncontroversial, but when and how it applied remained contested, depending on the professional viewpoint taken.Footnote 66 I present the history of this doctrine through the lens of three archetypes of international lawyers: (1) practitioners like the US lawyer-diplomats; (2) philosophers like the European professor-diplomats and (3) publicists like those institutional-diplomats who comprised the ILC.
Practitioners
From the practitioner’s observational standpoint, state responsibility is a weak but important legal tool that helps validate their clients’ claims of redress. State responsibility is a technical term they invoke when it is appropriate to address international claims – especially international investment disputes. Practitioners understand why, while there are the thousands of annual claims in the dockets of international tribunals, there is a relatively meager caseload within international courts; this is because international doctrines do not account for international power, which is an inherent element to the resolution of international disputes. This perspective privileges the everyday practice of international lawyers without denying the value of doctrine, but almost certainly minimizing the relevance of theory. A leading voice within this group is the German-born US international lawyer Hans Morgenthau (1904–80) (Figure 1.1), for whom diplomatic practice counts as a source of law far more than either doctrine or theory.Footnote 68 Some commentators refer to this group somewhat cynically as “managerialists,” for whom international law need not – perhaps even ought not – resemble the theoretical rigors of domestic law.Footnote 69 In the international system, observed practice is a strong normative component that usually serves to limit doctrinal or theoretical formulations of the law.
Figure 1.1 Hans Joachim MorgenthauFootnote 67
Each area of practice comprises its own reality: environmental law employs the “responsibility” or “liability” of states differently than, for example, investment protection law. Environmental lawyers and commercial arbitration lawyers know this well and act accordingly. They are, thus, careful to rely on “international law” to the extent that its rules further their clients’ interests. This stream of international law is sometimes associated with the Anglo-American culture of legal pragmatism.Footnote 70
Philosophers
To philosophers, in contrast to practitioners, theory is the best device for explaining the inherent completeness of international law.Footnote 71 Philosophers search for the fundamentals of international society, seeking to provide the preconditions and the relevance of just what we mean when we say a state is “responsible.” This group consists exclusively of law professors who tend to be more concerned with examining the criteria for the possibility of law than with the substance of its doctrine.Footnote 72 The most important of the philosophers, or theorists, is Austrian public lawyer Georg Jellinek (1851–1911) (Figure 1.2), who constructed the concept of Selbstverpflichtungslehre (self-limitation) to explain how international law binds sovereigns. In Jellinek’s view, the starting point was simple: state responsibility must exist – even if inconsistently in practice – for international law to exist at all.
Figure 1.2 Georg JellinekFootnote 73
The fact that the theory of international law was more unified or complete than diplomatic practice would allow was easily explained. Compared to civilized domestic societies, the international community of nations was in an earlier stage of legal development. To the philosophers, the inadequacies of international practice was a temporary problem that should not hinder the formulation of a robust theory of state responsibility. As a younger legal system, international law would require more time to produce more sophisticated bodies of norms as found in domestic societies. In the meantime, when legitimating their systems, theorists rely on authoritative legal sources rather than provisional political acts. As such, domestic laws and international treaties will be more valuable than ad hoc arbitrations. This view of international law is often associated with the German-speaking approach to public law.Footnote 74
Publicists
From the perspective of this third group of lawyers, state responsibility is constitutive of international law. From their experience with constitutional law, it is the role to help explain the capriciousness of state practice.Footnote 75 Paradigmatic of this group is Roberto Ago (1907–95) (Figure 1.3), the Italian jurist who led the ILC’s successful codification of state responsibility in the 1960s (until he was appointed to the bench of the World Court). Doctrinalists employ doctrine to describe legal rules in a predictable and coherent form – despite the vicissitudes of practice. To them, the overarching ideal is the rule of law. According to Ago,
there is not a single judgment of the Permanent Court of International Justice or of the International Court of Justice, nor of a single international arbitral award, that explicitly or implicitly recognizes the existence of international obligations the breach of which would not be a wrongful act and would not entail international responsibility.Footnote 76
Figure 1.3 Roberto AgoFootnote 78
Roberto Ago, 5th President of the Italian Republic, 1965
This approach to international law is often associated with international lawyers operating within the League of Nations and later the United Nations.Footnote 77 Like theorists, they share an optimistic faith in history, one that will lead to a more full and consistent judicial practice. Thus, when appointed to global bodies such as the ILC, they see their roles as progressive developers of international law. To them, once practitioners are set on the correct course of international law (as articulated in doctrine), the system will settle into a sophisticated structure that resembles its domestic counterpart.
Merchants of Legalism and Purveyors of Legitimacy
Viewing the history of state responsibility through these three lenses helps situate its multi-branched development within specific social and political contexts. These include reunification in the US after the Civil War of 1861–1865; unification in Germany following the Franco-Prussian War of 1870–1871; and the establishment of world bodies in the wake of two catastrophic world wars in 1914–1918 and 1939–1945. These lawyers wielded principles of law and philosophy to solve diplomatic disputes in Latin America, to understand the rapid growth of a federating empire and to design a system of international law enforcement that could appeal to a postcolonial audience.
While each of these models represents a different observational standpoint, what is common to all of them is a struggle to justify their expansive view of international law.Footnote 79 Yale legal historian Robert Gordon describes late-nineteenth century lawyers as purveyors of legitimacy on behalf of their clients:
The law … is an artificial utopia of social harmony … The lawyer’s job, thus, is to mediate between the universal vision of legal order and the concrete desires of his clients, to show how what the client wants can be accommodated to the utopian scheme.
The lawyer, thus, has to find ways of squeezing the client’s plan of action into the legally recognized categories of approved conduct. Of course, the law’s view of the client’s reality is often a highly distorted one, since its categorizing forms are administratively manageable only if they drastically abstract and simplify for that reality, and legitimate only if they seem to be part of the system of universal normative order. Even so, the lawyer’s job is selling legitimacy: reassurance to the client and its potential regulators, investors, or business partners that what it wants to do is basically all right …Footnote 80
There is a theme of norm entrepreneurship in these stories. State responsibility emerged through the creative efforts of professional lawyers.Footnote 81 In the US, lawyer-diplomats used state responsibility as a loose framework of remedies borrowed from domestic law that could be imposed on states for alien injuries; states, as states, were liable for damages when they failed to provide international standards of protection to aliens in their territory. Latin American lawyer-diplomats, also, viewed state responsibility as a characteristic of statehood; but the US model of the field was an acceptable double-standard of protection in their eyes.
This international standard of care seemed to apply more frequently to new states than it did to established ones. To Latin Americans, the appropriate form of state responsibility would have to be more general than one field of law and it would have to apply equally to the North and South. Hence their affinity for German theory. German public lawyers contemplated state responsibility similarly to the Latin Americans – as a unified, overarching theory of public law, one that could be used both as a tool for civilizing their expanding colonial governments, and a standard for measuring the liability of all states.
These norm entrepreneurs did not describe their projects as legislative in nature. This would have been an impractical position to take, and they were professional attorneys after all. US lawyer-diplomats described their government’s allegations of state responsibility for alien injuries as consistent with existing legal doctrine and based on general principles of law.Footnote 82 German philosophers articulated their expectations of public responsibility in terms of a valid system of public law; and even though such a system did not yet exist, they would invent one to address the needs of modern society. International lawyers within world bodies sought to draw up a code that was a hybrid of the above two models: it was purportedly based on the actual practice of states as well as conceptualized using existing theories of public law. It is important to emphasize that all three groups overlapped in varying degrees, especially the doctrinalists.Footnote 83 This account of their efforts is not my attempt to provide a neat history of state responsibility.Footnote 84 The best I can hope for is to offer a contextual account of its origins while avoiding oversimplifying what is one of the most intricate fields of international law.
In the next and final section of this introduction, I preview the six chapters that comprise this book. For the reader’s convenience, I provide summaries at the end of each substantive chapter. Further, I wrote Chapter 6 as an “epilogue” to state responsibility’s history that both summarizes the first five chapters and conceptualizes some lasting legacies.
Road Map
Chapter 1 – In the introductory chapter, I introduce the norm of international responsibility and describe it as an exceptional doctrine that is easy to oversimplify. I presented my thesis on the recent origins of state responsibility, which was “born” sometime between 1870 and 1930 to American and German parents. I discussed the problems with state responsibility that are unique to international law – at the same time, it could seem like everything and nothing at all. Lawyers have coped with this in very different ways. This book is structured to reflect three such perspectives: (1) International practitioners in the US, (2) Philosophers based in German-speaking countries and (3) Publicists within international institutions. I set out to trace the pre-institutional origins of state responsibility and connect these narratives to existing doctrines. This expanded historical framework highlights the non-unified doctrine of state responsibility as well as the political contexts from which they emerged.
Chapters 2 and 3 – In the first narrative, I describe state responsibility as the enforcement of the age-old rules regarding hospitality to strangers that have come to really mean investment protection. In the New World, international arbitrators employed the word “responsibility” in the many different settings of diplomatic protection claims: European-Latin American,Footnote 85 Anglo-AmericanFootnote 86 and intra-American.Footnote 87 However, “responsibility” did not refer to a singular legal idea at the time. It was a word that connoted many legal and moral ideas about state rights vis-à-vis alien injuries. I identify the first modern usages of responsibility – that is, the legalistic consequences of a state’s breaching its international obligations – in the diplomatic practice of the US Government following the Civil War.Footnote 88
At that time, US nationals flooded the State Department with claims for diplomatic protection. To resolve international claims efficiently with scant political or human resources, the State Department began delegating the resolution of these disputes to professional international arbitrators. In so doing, US lawyers firmly established international arbitration as the forum for resolving alien injuries. The US staffed these tribunals with likeminded lawyers who would base their awards on international, rather than local, standards of protection. This manner of litigating alien protection claims generated a body of positive law on state responsibility for alien injuries.Footnote 89 US lawyers did not set out to create a doctrine of state responsibility, but to use international law as a tool for securing better than local protection of property in the New World. But the unavoidable result was a set of precedents that would ultimately become applicable to the US as well. By internationalizing alien protection claims, the US unwittingly positioned itself to be judged in the same manner. Such is the power of law.
Chapter 4 – In the second narrative, I describe state responsibility as a theory for holding states accountable for their actions. In nineteenth-century Germany, academic lawyers applied a “juristic method” to construct theories of public law to account for expanded governmental powers that resulted from political unification. German legal scholar August Wilhelm Heffter (1796–1880) is often cited as the first to articulate principles of state liability, but it was Georg Jellinek (1851–1911) who offered its first theoretical basis, Selbstverpflichtungslehre. German public lawyers did not base their theories on international awards from the New World. To them, international arbitration did not produce law in the technical sense. They viewed liability under international law primarily as an iteration of state liability under domestic public law. In this way, fledgling international practice did not prevent them from articulating comprehensive theories extrapolated from their domestic legal experience. In the end, the German theorization of state responsibility had a far greater impact upon lawyers within international institutions (e.g., ILC) than it did within Germany (e.g., Auswärtiges Amt).
Chapter 5 – In the third narrative, I explain how and why the United Nations first sought to codify state responsibility based on the US practice and later, on German theory. This decision was neither simple nor obvious. The world body had two choices: interpret state responsibility narrowly as alien protection, or broadly as a general code of international enforcement. On one level, the codification question was structural: should world bodies codify a fragmented law of state responsibility (akin to the domestic analogy) or a unified law of state responsibility (unique to international law)? On another level, the legislative question was one of scope: should it be limited to past practice, or should it provide a doctrine that addresses longer-term institutional needs? Finally, the issue was a political one as well that pitted two groups of litigants – North and South Americans – against each other within world legislative bodies. Going into the 1930 Hague Codification Conference, US diplomats were optimistic about limiting the codification of state responsibility to alien protection. However, they sobered up soon thereafter. By 1960, it was clear that any endeavor to base the UN’s work on the US practice amounted to codification suicide.
By that time, five attempts to codify state responsibility as alien protection had already failed. This is because Latin American lawyers had finally accumulated sufficient voting power within international institutions to oppose US efforts to entrench an imperialistic practice. A turning point came in the early 1960s under the stewardship of Special Rapporteur Roberto Ago, who untethered the UN’s codification from past practice and set out to draft a general code of international enforcement. In contrast to German theory, however, Ago drafted the code to allow for specific regimes of practice to remain as exceptions to its rule. In this way, both North and South America could claim victory. The US could maintain its arbitral practice of alien protection while Latin America secured a general code of international enforcement that applied, technically speaking, to the North and South equally. As such, the ILC doctrine of state responsibility is both a rejection as well as a validation of the US practice of alien protection.
Chapter 6 – In this final chapter, I take a step back to offer a few generalizations about state responsibility and its historic role of selling legitimacy. I reconceptualize the growth of state responsibility in terms of three overlapping phases: (1) pre-legalism, (2) ad hoc legalism and (3) institutional legalism.Footnote 90 The continuously fertile field of alien protection has survived beyond the ILC’s codification. There remains a duality of doctrines of state responsibility, one specific and one general. While these doctrines are, of course, very different in scope and content, I identify several motifs that are present across the spectrum of state responsibility doctrines. One idea that runs through all three narratives of this history is the consequentiality of breaking international law. A second theme is the habitual reliance on legalism as the appropriate process for resolving international claims. Another motif is the exceptional nature of state responsibility; it is a doctrine in which the exceptions are more applicable than its rules. While, as a doctrine of international law enforcement, it does not predict state behavior well, it remains a crucial symbol about the relevance of international law to world affairs. The codification of state responsibility as secondary rules has provided international society with an argumentative tradition for questioning and judging any type of state conduct. We begin in the US, where lawyer-diplomats in the White House turned to law as a tool of diplomatic power.
