Some Observations on Wrongfulness, Responsibility and Defences in International Law

Abstract

In this article, I argue that international law has a major structural crack: the limited international legal capacity of non-states, and a high threshold of attribution to states. A great deal of international conduct thus remains unregulated. I further explain that this is not only a gap in responsibility but in fact a gap in international legal regulation. The law of international responsibility overlaps with the law of international legal capacity. For the most part, it is thus only states and international organisations which are even conceptually able to violate international law directly. If a certain conduct is not attributable to them, it will not be internationally wrongful. I also suggest that the division between the primary and secondary rules of international law is confusing and arbitrary, and certainly should not be understood as a sequential order. In the conclusion I argue that scholarship has been perhaps too preoccupied with addressing certain symptoms of the ‘great structural crack’ in international law, while the real problem lies in the unclear concept of international legal capacity.

Keywords: International Legal Capacity; State Responsibility; International Wrongfulness; Attribution; Primary and Secondary Rules; Justifications and Excuses Internationally