Chapter 2: Internationally wrongful act
Whether the wrongful act or the question of attribution comes first is a matter of discussion. It can be considered that only when it is determined that an act or omission is imputable to a State does the question whether that act or omission is wrongful arise at all, in light of the obligations of that particular State. Conversely, it can also be considered that ‘illegality’ is the core of responsibility and that therefore it is necessary or at least possible to provide first a general analysis of that term before turning to the more specialized issues of attribution. This matter of intellectual primacy is not of paramount importance. The essential point is that both elements are equally necessary for the attachment of concrete consequences of responsibility. IWA is sometimes called the ‘objective’ element and the attribution the ‘subjective’ element of responsibility.91 Whether this is an apt terminology can also be left open, it being understood that both elements are ‘objective’ in the sense that they depend on legal norms and not on the mere will of some subject of law.
It has already been said that the IWA is the core element of responsibility. This is true to the extent that there is no issue of responsibility if there is no IWA. Conversely, it is possible to speak abstractly of responsibility if there is an IWA but no attribution; the consequence of this absence is then merely that no concrete subject will face...
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.