Crawford and Alvarez on Non-State Responsibility in International Law
I’m in Ottawa for a few days, attending the annual meeting of the Canadian Council on International Law – Canada’s equivalent to ASIL, but smaller. Fewer folks aside, the conference packs a powerful punch. I was here to present a paper, exploring how Principal-Agent theory (and Karen Alter’s Trustee variant) explains the U.S. relationship to the International Joint Commission set up by the 1909 Boundary Waters Treaty, something on which I’ll have more to say here later. I found myself sandwiched between two speakers who had much grander ambitions – James Crawford’s keynote address, entitled The Concept of Responsibility in International Law and ASIL President José Alvarez’s lunchtime talk on International Organizations: Accountablity or Responsibility?
Both talks sounded real cautionary notes on prospects for moving beyond the Articles of State Responsibility (“ASR” or, as some would call them, Crawford’s rules, since his ILC work essentially brought them into fruition).
Crawford’s talk emphasized the newness of the concept of state responsibility itself, let alone the ASR, which the UNGA only just took “note of” a few years ago (insiders may appreciate that Crawford originally said the UNGA “adopted” the ASR before correcting himself to indicate the UNGA had only taken note of them). At the same time, he emphasized that the ASR emerged in, and existed within, a system very much focused on the idea of unitary states.
As for anyone else getting responsibility under international law, he argued that they do so by analogy to states and, even then, largely on a case-by-case basis (e.g., EC membership in UNCLOS or the WTO). Crawford explained that he didn’t see a real problem extending the ASR to international organizations in such cases, but acknowledged the implementation problems posed in actually applying such rules.
For individuals, however, Crawford was much more skeptical. He explained, for example, that it’s hard to treat individuals as fully formed legal persons, notwithstanding that they’re increasingly the subject of international criminal law. Crawford argued that Pirates don’t become international legal persons by virtue of their doing something—piracy—prohibited by international law. Similarly, he noted that individual responsibility is frequently limited; i.e., individual claimants under human rights treaties can’t be subjected to counter-claims by the states against whom they are complaining.
Crawford’s take-away point, however, was that there’s no basis at all for extending international legal responsibility to corporations. Those international law rules that address groups only extend responsibility to states or individuals (see, e.g., International Humanitarian law). Even recent treaties such as the Terrorist Financing Convention will include text directly assigning responsibilities to individuals for their behavior but then text indicating it’s the state’s duty to impose equivalent requirements on its corporations.
Thus, although Crawford didn’t deny NGOs and other non-state actors have increasing influence in international law, he was very skeptical that they could (or even should) be treated in a responsibility framework akin to the one we have for sovereign states.
I found the talk measured, and ultimately, very moderate (some might even say conservative) in both tone and substance – Professor Crawford gave a compelling account of a point on which I’m sympathetic—i.e., that formally speaking, state interests remain of primary concern in international law, and announcements of the death of the state may be premature if not wholly fanciful.
Professor Alvarez’s tone, by way of contrast, was a bit less measured. As is his MO, he took a much more aggressive stance, launching a full scale attack on the content and very concept of recent ILC work on drafting Articles on Responsibility for International Organizations (IOs).
Alvarez gave a blistering critique of the ILC’s willingness to treat the Responsibility for IOs project as a sequel to the ASR, so much so as to presumptively and frequently follow the ASR rules by simply replacing the term “state” with the term “IO.” Alvarez, was not, to be clear, critiquing the ASR; on the contrary he said, and I quote “Crawford’s Rules Rock.”
Alvarez emphasized how much of the ASR framework built on the VCLT (e.g., ideas of necessity, impossibility, etc.) which, as yet have no practical analogue among IOs – there’s just no uniform or consistent practice on which to operate. Thus, Alvarez suggested that much of the ILC’s IO responsibility work, unlike the ASR, emerged from their own heads and not actual practice.
Finally, Alvarez condemned the notion that one can treat all IOs the same, noting that in some cases IOs were purposefully designed to act solely as “agents” for their member states, while in other instances, their creation was motivated by a desire to create autonomous actors.
In the end, Alvarez seemed quite comfortable with getting more accountability out of IOs, but denounced the idea that responsibility was somehow an alternative to accountability that could be imposed on the international legal order without a great deal more thought and effort.