In the Epilogue, I take a step back to offer a few generalizations about the history of state responsibility. First, I reconceptualize the growth of state responsibility in terms of three overlapping phases: (1) pre-legalism; (2) ad hoc legalism; and (3) institutional legalism. I then consider some themes common to US, German and other approaches to state responsibility. One idea that runs through all three narratives is the consequentiality of breaking the law. When a state violates its international obligations, there should be a consequence for its conduct. What that “responsibility” should mean was, of course, an open question. Another noticeable pattern is that state responsibility was a fundamentally exceptional doctrine. Whatever the purported general rule, the doctrine has consistently provided considerable room for exceptions. Yet, while the UN–codified doctrine does not predict state behavior, it remains a critical legal framework. 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.

Chapter 9 examines the relationship between IHL and international human rights law (IHRL). Both bodies of law are concerned with protection of the human person, but there are some stark differences between the two. First, many IHRL instruments permit parties to derogate from their IHRL obligations in times of public emergency such as armed conflict, while IHL applies precisely at such times and permits of no derogation. Second is the difference in scope. IHL applies to all territory where an armed conflict is taking place, whereas IHRL has only limited extraterritorial application. This can lead to a direct conflict for a State, such as in a situation of occupation: the local law might violate IHRL obligations, yet under IHL the Occupying Power is required to respect that local law. Third, where IHL applies to both States and non-State actors, IHLR is primarily addressed to the State. In cases of overlap, harmony is preferred – both bodies of law apply. Where that is not possible because the conflict is direct, there are different views on how such conflicts should be reconciled. One view is that IHL, as the lex specialis, should prevail; the other is that the lex specialis doctrine will not always be appropriate. The conclusion is that although IHL and IHRL are slowly converging over time, there will still be situations where the differences are irreconcilable.

This chapter discusses the development and application of international humanitarian law (IHL) and its interrelationship with human rights law. It further examines this special relationship, which is of particular importance for the protection of civilians, especially where the applicability of IHL is contested or where IHL constitutes an exception to certain rights, such as the right to life, or fails to prevent and/or provide effective remedies for violations. The chapter seeks to identify the scope of application of IHL and demonstrate the degree to which the two can be reconciled. Moreover, a special case is made for the law applicable in situations of military occupation whereby human rights are subordinate to IHL. Despite this subordination, in practice because international human rights tribunals are not mandated to apply humanitarian law they necessarily interpret and enforce the rights of the victims on the basis of the rights found in their respective statutes. As a result, the jurisprudence of human rights tribunals is not always consistent with IHL. Yet, such tribunals are hard pressed to accept jurisdiction over situations which would otherwise be resolved on the basis of IHL alone. This chapter therefore goes on to discuss the exercise of extraterritorial jurisdiction by human rights tribunals.

The present chapter examines whether, and if so to what extent, customary international law applies within the internal legal sphere of the EU, that is, between EU member states within the EU law’s scope of application as well as in their legal relations to the EU. In essence, the relevance of customary international law within the EU’s internal legal sphere is about the EU’s assertion of autonomy and self-containment that has been unfurled by the CJEU. The analyses of key areas of customary law (e.g. diplomatic relations, sovereign immunity and equality, rules of responsibility) reveal a complex picture of the its rules’ relevance within the EU. They play a more tangible role in the relationship between EU member states, first and foremost in sovereignty-related areas, than in member states’ legal relationships to the EU. Nevertheless, the present chapter shows that despite being a ‘new legal order’, the EU treaties still constitute a subsystem of public international law, albeit one which manifests typical characteristics of self-containment.

Chapter 3 addresses the potential for norm conflict arising from the parallel application of investment treaties and international humanitarian law. It argues that such conflict must be avoided through treaty interpretation. Drawing from their interaction with human rights law, the rules of armed conflict should inform the meaning of investment treaty clauses through ‘systemic integration’. The chapter shows that investment tribunals possess the authority and duty to conduct such a subordinate examination under humanitarian law as part of the interpretive exercise. Although standards of protection may, as a result, be lower than in peacetime, the chapter argues that giving effect to humanitarian rules through investment law ensures the normative appeal of investment treaties. It allows taking into account military concerns and rejects special treatment of foreign investors compared to ‘ordinary’ civilians. At the same time, the chapter highlights, investment treaties give investors a unique opportunity to enforce international rules during armed conflict and secure compensation for unlawful conduct in hostilities.

Chapter 9 attempts to apply the normative findings of this book to new-generation FTAs concluded by the EU, primarily to CETA. The analysis is based on the data gathered during the discussions with officials involved in the negotiation of these agreements. The study explains how the new FTAs establish primacy of procedural rules which place the EU at the forefront of dispute resolution. Finally, this study proposes some critical questions with the aim of opening further debate on the policy implications of functional international responsibility.

Chapter 2 explores the ILC framework of international responsibility. The aim of the analysis is to identity rules which govern the allocation of international responsibility in a multi-layered structure where sovereignty is shared between different subjects of international law. This study argues that the purpose of both the ARIO and the ARSIWA is to determine whether a subject of international law is internationally responsible. If the question of responsibility arises in the context of a multi-layered structure, such as that of the EU, additional questions arise. The allocation of international responsibility within an international body falls outside the scope of the ARIO framework. Instead, this book suggests looking for guidance in the rules of organisation and the international dispute-settlement practice in which these rules operate.

Looked at through the topic of State responsibility, chapter five underlines the continued importance and relevance of the general rules of international law in addressing some of the challenges encountered when dealing with State corporate ownership and human rights. The first part of the chapter provides an introduction to the nature and scope of State responsibility in international law with particular emphasis being placed on the role and process of attribution. In this context, the rules of attribution found in Articles 4, 5 and 8 of the International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts are examined in detail. The second part of the chapter analyses how the concept of due diligence becomes relevant when certain acts and omissions cannot be attributed to the State because those acts are not perpetrated by State organs, by actors that exercise governmental authority, or by those that are not under the 'effective control' of the State. In such cases, States, can nevertheless, be held responsible for a failure to act diligently to take all the necessary measures to prevent or punish the occurrence of a specific act.

This chapter lays out a novel framework for conceptualising the water-relevant binding and non-binding instruments of the UNECE environmental conventions as one common normative regional environmental regime – an original contribution. In exploring the idea of a single regime, this chapter seeks to overcome a strictly positivist view of international law and understand the relevance of overlapping and/or non-uniform state membership of the UNECE legal instruments. It explores regionalism and regional approaches to international law and examines the relationship of the UNECE regime to international law and other international institutions. It sets out a framework for determining the UNECE regime’s relationship to general international law and other international water treaties – asking whether the regime lex specialis – a theme returned to throughout the remainder of the book. This chapter sets out a framework for exploring the making, implementation and enforcement of international law in the UNECE regime, which is employed throughout the research. This frame contributes to understanding around systemic integration, mutually supportive interpretation and cross-fertilisation in international environmental law and international law relevant to transboundary freshwater ecosystems.

The law of state responsibility has been affected by profound changes that have taken place in international affairs. The doctrine that used to concern mainly bilateral state relations has faced numerous challenges on different fronts. Globalization has empowered non-state actors, states have become less powerful and new issues of varying importance have emerged, some clearly demanding global attention such as climate change. Besides these external challenges, different perceptions of responsibility have appeared and gained prominence in the international arena. This fragmentation of responsibility has resulted in the coexistence of multiple responsibility regimes in international law whose relations are debated. The present study tests the law of state responsibility against the framework of functionality in order to see how well the regime and its rules meet the challenges. It is argued that normative significance must be accompanied with practical utility.

The chapter addresses problems with the general rules of state responsibility from the perspective of functionality. The analysis follows the structure of the Articles on State Responsibility, which means that the critique is organized according to the elements of an international wrongful act, the content of responsibility, as well as its implementation. It is argued that the general rules of state responsibility struggle to respond to the heterogeneity of actors, subject-matters, and norms implicated in the governance of international affairs. It is further contended that state responsibility is marginalized in some situations; in situations of serious wrongs international criminal law has appeared as an alternative remedy, and significant harm is dealt with through rules on international liability. Thus, other forms and regimes of responsibility have appeared, making it necessary to understand responsibility in broader and more versatile terms than what is offered by the state responsibility doctrine.

The notion of abuse of right as an autonomous principle of international law continues to exercise a facile appeal. Yet international economic arbitrations have failed to yield a lex mercatoria capable of providing comprehensive rules of decision; this is not where a coherent principle of abuse of rights will emerge. A different proposal is to establish abuse of rights as a general principle derived from international law itself (rather than by the distillation of general principles common to national laws). This too founders on the observation that acontextual abstractions do not yield meaningful criteria amenable to predictable application, and that in any event international disputes may, and have been, resolved in other ways. The modern international environment is abrim with concurrent rights that must be accommodated by negotiation or by properly enacted lex specialis without resorting to the provocative declaration of any of them to be abusive in its exercise.

As will become evident through the course of this chapter, development in its human rights context is primarily a value that translates into individual and communal well-being. This well-being may be linked to industrial or other financial development, although the correlation between the two is neither self-evident nor necessary. If this right to well-being is to make a difference in the lives of people, whether in poor or rich nations, it must be susceptible to quantifiable measurement through which one is able to assess its progress and realisation. In the last decade experts have developed a list of detailed indicators which allow us to assess well-being more accurately. At the same time, wealthy nations have abandoned ad hoc unilateral efforts to assist their poorer neighbours to escape perpetual cycles of poverty by entering into institutionalised multilateral commitments to contribute part of their annual earnings to developmental goals. These goals are also vigorously pursued by multilateral development banks, such as the World Bank and the African Development Bank.