Causation in the Law of State Responsibility

Causation has, at the very minimum, two functions in legal responsibility regimes. First, there is no responsibility without a conduct with causal consequences, making causation a condition of responsibility. Second, causation determines and delimits the extent of liability. The first claim of this study is that the decision of the International Law Commission to construct a responsibility regime unconditional on damage did not result in the exclusion of causation from the conditions of responsibility. There are at least two signs demonstrating that the attempt to exclude responsibility-grounding causation from State responsibility did not hold ground in practice. First, there is abundant case law pre- and postdating the codification of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), confirming that responsibility-grounding causation exists in international law. Second, notwithstanding the denial of ARSIWA and its commentaries, reading between the lines reveals that several concepts of State responsibility are of a causal nature and their application inevitably implies a causal inquiry. There are two interrelated explanations for this. First, at the heart of the system of State responsibility lies the concept of the ‘internationally wrongful act’. I argue that the law of State responsibility lacks a coherent action theory. In particular, a causal theory of action would explain several anomalies visible in the case law. The second explanation rests on approaching causation in the law of international responsibility as a general principle of law. The prevailing view in the case law and the academic contributions is that causation and, more specifically, certain standards of causation are general principles of law. In making the second claim of this thesis, I will argue that this is only partially true. Causation is a general principle in as much as the existence of a causal link is a condition of responsibility and one possible condition of delimiting liability. ARSIWA therefore runs contrary to this general principle. However, the authorities arguing for a specific test of causation, be it directness, proximity, foreseeability or other tests, do not have a substantial basis to do so. What remains, as an empirical and inductive method in line with Article 38 (1) d) of the ICJ Statute, is to distil the actual practice of international courts and tribunals. My third claim is that there is merit in this exercise and it is possible to identify recurring solutions to recurring problems of causation. This study is the second one to conduct this survey and analysis of the case law, following the footsteps of Brigitte Stern, updating and complementing her otherwise exhaustive and authoritative text on the subject. The thesis concludes with a list of the distilled principles and postulates on respective problems of causation, in particular on the applicability and the limits of the ‘but for’ test, the applicable standard of remoteness, multiple causation and contributory negligence.W M Tapp Studentship Cambridge Home & EU Scholarship Schem