Breaking International Law

• In Event: International Cooperation and International Law

Abstract

The international law of state responsibility contains multiple disconnects between legal breaches and punishments. Attribution rules limit the responsibility of states for individuals; numerous circumstances preclude the wrongfulness of breaches; and the consequences of breaches are at best restorative, not punitive. Why are the rules on state responsibility so weak? Why haven't states designed rules that are more effective at deterring legal breaches? We argue that to understand the design of the law of state responsibility, we must first understand why states are tempted to break international law. In this paper, we describe the existing law of state responsibility and relate its attributes to three distinct political theories of why states break international law (deterrence, managerial, and flexibility). We argue that each of these political theories offers a different perspective on how states should assign legal responsibility for breaches. While many aspects of state responsibility support a managerial view of compliance, we argue that existing rules best accord with the flexibility perspective. That is, states appear to have purposely designed weak rules to preserve their own ability to break the law when economic or political conditions make compliance cost-prohibitive.

Authors

• Leslie Johns, University of California, Los Angeles

• Francesca Parente, University of California, Los Angeles