International Law Department Academic year 2020 - 2021
Shared responsibility of States and International Organizations in International Law
DI143 - Autumn - 6 ECTS
Every second Friday 14:15-18:00 (S5)
Course Description
The increase in both the need and the reality of international cooperation, by an increasing number of different entities, such as States, International
Organizations, and non-State actors, gives rise to new and more complex responsibilities in case of harm caused.
COVID-19 is a prominent example of how multiple actors can contribute to harm at a global scale, and where the question has proved to be exceedingly difficult how such responsibilities can be determined. Similar complex questions have arisen in relation to, for instance, climate change, refugee law and military operations.
The Course Shared responsibility of States and
International Organizations in International Law addresses such issues from both a theoretical and practical
perspective.
PROFESSOR André Nollkaemper Office hours
ASSISTANT
Hiruni Nadezhda Alwishewa
Office hours
Syllabus
This class is open to international law MIL and international law PhD students. It is open to PhD students from another discipline who are doing a minor in international law.
Overview
The course will start by discussing the conditions under which states, international organizations, and non-state actors are responsible for their actions and the consequences that flow from their responsibility. In doing so, particular attention will be paid to the International Law Commission’s attempts to codify the core principles of international responsibility, as well as to the jurisprudence of international courts such as the International Court of Justice, arbitration tribunals, and human- rights courts.
Following the discussion of the general law of responsibility, the course will focus on the content and limitations of the current framework when dealing with multiple wrongdoers, while proposing novel ways of approaching the issue of complex responsibilities, both substantially and
procedurally.
This part of the course will discuss the Guiding Principles on Shared Responsibility in International Law, published in the European Journal of International Law in August 2020.
Several questions will be addressed, among others: how does one attribute a single act to several States? On what basis does one apportion reparations among them?
In practice, questions of shared responsibility are largely addressed in area-specific legal regimes, such as climate change and military operations. The course will study such regimes, and consider questions such as: how are these regimes designed to reflect shared responsibility;
do these regimes consider the question of joint responsibility; and what is the interaction between these regimes and the general rules on state responsibility and responsibility of international organizations?
The course will also address international adjudication of questions of shared responsibility. A peculiarity of the international legal system is, in addition to the relative absence of courts to adjudicate questions of shared responsibility, that these courts usually will only have jurisdiction over part of the responsible entities. In part as a result of this, questions of shared responsibility are often addressed through a complex web of responsibility mechanisms for various types of actors before a variety of institutions (national and international courts, quasi-judicial bodies, political organs such as the Security Council).
Course Requirements
The class will take place on every second Friday from 14.15 to 18.00 (dates listed below). Students are asked to prepare each class by reading the relevant materials. Active participation in class is expected.
Materials
General materials used throughout the class:
ILC articles on responsibility of states with commentaries:
https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf
ILC articles on responsibility of international organisations with commentaries:
https://legal.un.org/ilc/texts/instruments/english/commentaries/9_11_2011.pdf
Guiding Principles on Shared Responsibility in International Law 2020:
http://ejil.org/article.php?article=3037&issue=151
Final evaluation
The final evaluation will consist of a take-home exam and will account for 100% of the final grade.
In the take-home exam students will have to answer either an essay question or write a legal opinion based on a set of imagined facts. The take-home exam will be distributed to students at the last class on 18 December and due by 6pm on 23 December.
The response to the take-home exam must be written in English and must not exceed 2,500 words, including footnotes and other references.
Further details on the take-home exam will be provided during the year.
Class schedule
Class 1 – The concept of international responsibility 25 September 14.15-16.00
James Crawford and Simon Olleson, ‘The character and forms of international responsibility’, in M Evans, International Law, OUP, 5th ed. chap 14.
A Pellet, ‘The Definition of Responsibility in International Law’ in J Crawford, A Pellet & S Olleson(eds), The Law of International Responsibility (OUP, Oxford 2010) 3-16
P Allot, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard International Law Journal 1 - 26
ICJ, Military and Paramilitary Activities in and Against Nicaragua, Merits, Judgment, ICJ Reports 1986
Class 2 – The problem of many hands in international law 25 September 16.15-18.00
DF Thompson, 'Moral Responsibility of Public Officials: The Problem of Many Hands', The American Political Science Review 74(4) (1980) 905-916
C Hood, ‘Accountability and Blame–Avoidance’, in The Oxford Handbook of Public Accountability (M Bovens et al , eds), OUP 2014
Commentary: Shifting blame cannot hide U.S. failure in response to COVID-19, http://www.xinhuanet.com/english/2020-05/17/c_139064409.htm
Legality of Use of Force (Yugoslavia v United States) (Provisional Measures, Order), 1999 ICJ Rep 916 (9
Hussein v Albania, App no 23276/04 (ECtHR, 14 March 2006), available at hudoc.echr.coe.int
Class 3 – The concept of shared responsibility in international law 9 October 14.15-16.00
Andre Nollkaemper & Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’, 34 MJIL (2012) 360-438 https://repository.law.umich.edu/mjil/vol34/iss2/3/
John E. Noyes & Brian D. Smith, ‘State Responsibility and the Principle of Joint and Several Liability’, 13 YJIL 225, 225 (1988).
Guiding Principles on Shared Responsibility in International Law 2020, commentaries to Principles 1-4
Class 4 – Attribution of conduct: general aspects 9 October 16.15-18.00
International Law Commission, Commentaries to the Articles on the Responsibility of States for Internationally Wrongful Acts, commentaries to articles 4, 5, 7, 8 and 11
L Condorelli & C Kress, 'The Rules of Attribution: General Considerations' in J Crawford, A Pellet & S Olleon (eds), The Law of International Responsibility (OUP, Oxford 2010) 221-236
F Messineo, Attribution of Conduct, in Principles of Shared Responsibility in International Law (A Nollkaemper and I Plakokefalos, eds (CUP 2014, 60-97 (not section 3))
ICJ, Military and Paramilitary Activities in and Against Nicaragua, Merits, Judgment, ICJ Reports 1986 [only paras. 106-116]
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, ICJ Reports 2007 [only paras. 377-415]
ICJ, Certain Phosphate Lands in Nauru, Nauru v Australia, Preliminary Objections, Judgment, [1992] ICJ Rep 240, ICGJ 91 (ICJ 1992), 26th June 1992,
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, ICJ Reports 2007 [only paras. 377-415]
Class 5 – Dual attribution between states and international organisations: the Srebrenica case 23 October 14.15-16.00
International Law Commission, Commentaries to the Articles on the Responsibility of International Organizations, commentaries to Part Two Chapter II (p. 54-62)
P Klein, ‘Attribution of Conduct to International Organizations’ in J Crawford, A Pellet & S Olleson (eds), The Law of International Responsibility (OUP, Oxford 2010) 297-316
F Messineo, Attribution of Conduct, in in Principles of Shared Responsibility in International Law (A Nollkaemper and I Plakokefalos, eds(, CUP 2014, 60-97 (only section 3)
T Dannenbaum, 'Dual Attribution in the Context of Military Operations' (2015) 12 International Organizations Law Review 401-426
ECtHR, Behrami and Behrami v France & Saramati v France, Germany and Norway, Grand Chamber, Decision on Admissibility, 2 May 2007 available on HUDOC [especially paras. 121- 145]
Stichting Mothers of Srebrenica and ors v Netherlands and United Nations, Final appeal judgment, LJN: BW1999, ILDC 1760 (NL 2012), 13th April 2012, Netherlands; Supreme Court
Netherlands (Ministry of Defence and Ministry of Foreign Affairs) v Nuhanović, Final appeal judgment, ECLI/NL/HR/2013/BZ9225, ILDC 2061 (NL 2013), 12/03324, 6th September 2013, Netherlands; Supreme Court
Mothers of Srebrenica v The Netherlands and the UN, LJN: BW1999, Dutch Supreme Court, 13 April 2012 and Stichting Mothers of Srebrenica and Others against The Netherlands, App.
No. 65542/12, European Court of Human Rights, 11 June 2013
<https://opil.ouplaw.com/view/10.1093/law/9780198743620.001.0001/law-9780198743620- chapter-49?rskey=BhJbiF&result=1&prd=OPIL>
Class 6 – Attribution of responsibility: the role of control 23 October 16.15-18.00
J Fry, Attribution of responsibility, Principles of Shared Responsibility in International Law (A Nollkaemper and I Plakokefalos, eds (CUP 2014), 69-97
PJ Kuijper, ‘Introduction to the Symposium on Responsibility of International Organizations and of (Member) States: Attributed or Direct Responsibility or Both?’ (2010) 7 International Organizations Law Review 9-33
J d’Aspremont, ‘Abuse of the Legal Personality of International Organizations and the Responsibility of Member States’ International Organizations Law Review 4 (2007), 91-119
Class 7 – Complicity 6 November 14.15-16.00
International Law Commission, Commentaries to the Articles on the Responsibility of States for Internationally Wrongful Acts, commentary to article 16
International Law Commission, Commentaries to the Articles on the Responsibility of International Organizations, commentaries to art 14, art 58
G Nolte and H Aust, ‘Equivocal Helpers: Complicit States, Mixed Messages and International Law’ (2009) 58 International and Comparative Law Quarterly 1-30 (especially pp. 1-19)
V Lanovoy, Complicity in an Internationally Wrongful Act, in Principles of Shared
Responsibility in International Law (A Nollkaemper and I Plakokefalos, eds(, CUP 2014, 134- 168
Corfu Channel Case' in K Bannelier, T Christakis & S Heathcote (eds), The ICJ and the Evolution of International Law (Routledge 2012) 315-334
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, ICJ Reports 2007 [only paras. 416-424]
ECtHR, El-Masri v. Former Yugoslav Republic of Macedonia, Appl. no. 39630/09, Judgment of 13 December 2012
Class 8 – Concerted action 6 November 16.15-18.00
International Law Commission, Commentaries to the Articles on the Responsibility of International Organizations, commentaries to art 17, and 61
Guiding principles on Shared responsibility, commentary to Principle 7
Erskine, T. (2015). ‘Coalitions of the Willing’ and the Shared Responsibility to Protect. In J.
Schechinger (Author) & A. Nollkaemper & D. Jacobs (Eds.), Distribution of Responsibilities in International Law (Shared Responsibility in International Law, pp. 227-264). Cambridge:
Cambridge University Press. doi:10.1017/CBO9781316227466.009
Legality of Use of Force (Serbia and Montenegro v. United Kingdom), Memorial of the Federal Republic of Yugoslavia
ECtHR, El-Masri v. Former Yugoslav Republic of Macedonia, Appl. no. 39630/09, Judgment of 13 December 2012
Class 9 – Reparation: general principles 20 November 14.15-16.00
International Law Commission, Commentaries to the Articles on the Responsibility of States for Internationally Wrongful Acts, commentaries to Part Two (pp. 86-110)
Guiding principles on Shared Responsibility 11 and 12
M Shaw, 'The International Court, Responsibility and Remedies' in M Fitzmaurice & D Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions (Hart, Oxford 2004) 19-33.
P. D’Argent, Reparation, Cessation, Assurances and Guarantees of Non-Repetition, in Principles of Shared Responsibility in International Law (A Nollkaemper and I Plakokefalos, eds(, CUP 2014, pp 208-250
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, ICJ Reports 2007 [only paras. 459-470]
Class 10 – Joint and several responsibility in international law 20 November 16.15-18.00
Guiding principles on Shared Responsibility 11 and 12
John E. Noyes & Brian D. Smith, State Responsibility and the Principle of Joint and Several Liability, 13 YALE J. INT'L L. 225, 225 (1988).
Kornhauser, L. (2015). Incentives, Compensation, and Irreparable Harm. In J. Schechinger (Author) & A. Nollkaemper & D. Jacobs (Eds.), Distribution of Responsibilities in International Law (Shared Responsibility in International Law, pp. 120-152). Cambridge: Cambridge University Press.
Van Aaken, A. (2015). Shared Responsibility in International Law: A Political Economy Analysis. In J. Schechinger (Author) & A. Nollkaemper & D. Jacobs (Eds.), Distribution of Responsibilities in International Law (Shared Responsibility in International Law, pp. 153-191).
Cambridge: Cambridge University Press.
Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, 6 November 2003, ICJ Reports (2003) 161, paras 66–72, Separate Opinion of Judge Simma.
Class 11 – Adjudicaton of shared responsibility 4 December 14.15-16.00
A Nollkaemper, Procedural Aspects of Shared Responsibility in International Adjudication, Journal of International Dispute Settlement, Volume 4, Issue 2, July 2013, Pages 277–294
Paparinskis, Martins, Procedural Aspects of Shared Responsibility in the International Court of Justice., Journal of International Dispute Settlement. Jul2013, Vol. 4 Issue 2, p295-318. 24p.
ICJ, Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 259-262,
ICJ, East Timor. (Portugal v. Australia) Judgment, I.C.J. Reports 1995,
ICJ, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
o Preliminary Objections UK, par 83-103
o Written observvations Marhall islands Par 97-114 o Judgment, Diss op. Judge Crawford, Section 6.
Class 12 – Climate change 4 December 16.15-18.00
Shue, H. (2015). Transboundary Damage in Climate Change Criteria for Allocating
Responsibility. In J. Schechinger (Author) & A. Nollkaemper & D. Jacobs (Eds.), Distribution of Responsibilities in International Law (Shared Responsibility in International Law, pp. 321-340).
Cambridge: Cambridge University Press. doi:10.1017/CBO9781316227466.012
J Peel, Climate Change, in The Practice of Shared Responsibility in International Law, A Nollkaemper and I Plakokefalos (CUP 2017) pp 1009-1050
A Nollkaemper and L Burgers, New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case, EJIL Talk, https://www.ejiltalk.org/a-new-classic-in- climate-change-litigation-the-dutch-supreme-court-decision-in-the-urgenda-case/
Dutch Supreme Court in State of the Netherlands v Urgenda I,
https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007
Nataša Nedeski, Tom Sparks & Gleider Hernández, “Judging climate change obligations: Can the World Court raise the occasion? Part I: Primary obligations to combat climate
change”, Völkerrechtsblog, 30 April 2020, doi: 10.17176/20200430-133351-0.
Nataša Nedeski, Tom Sparks & Gleider Hernández, “Judging climate change obligations: Can the World Court raise the occasion?Part II: What role for international
adjudication?” Völkerrechtsblog, 30 April 2020, doi: 10.17176/20200501-013422-0.
Class 13 – State responsibility and individual criminal responsibility 18 December 14.15-16.00
International Law Commission, Commentaries to the Articles on the Responsibility of States for Internationally Wrongful Acts, commentaries to article 58s
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, ICJ Reports 2007
Dapo Akande & Antonios Tzanakopoulos, ‘The Crime of Aggression in the ICC and State Responsibility’, Harvard International Law Journal Online
Kimberley N. Trapp, State Responsibility for Terrorism (OUP, 2011), Chapter 6, 230-263.
Thomas M. Franck, ‘Individual Criminal Liability and Collective Civil Responsibility: Do They Reinforce or Contradict One Another?’ (2007) 6 Washington University Global Studies Law Review 567-573
Class 14 – Shared responsibility with non-state actors 18 December 16.15-18.00
d' Aspremont, J., Nollkaemper, A., Plakokefalos, I., & Ryngaert, C. (2015). Sharing responsibility between nonstate actors and states in international law: introduction.
Netherlands International Law Review, 62(1), 49-67.
Eugene Kontorovich, Shared Responsibility to Protect. In A. Nollkaemper & D. Jacobs (Eds.), Distribution of Responsibilities in International Law (Shared Responsibility in International Law, pp. 227-264). Cambridge: Cambridge University Press.
André Nollkaemper. "Issues of Shared Responsibility before the International Court of Justice"
Leiden-BostonEvolving Principles of International Law, Studies in Honour of Karel C.
Wellens (2012)
Available at: http://works.bepress.com/andre_nollkaemper/1/ (only section6.2)
