CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ BEYOND BILATERALISM. A THEORY OF STATE RESPONSIBILITY… uses the non-bilateral obligations and responsibility in order to complete “the jigsaw puzzle”, to use her words. This is highly commendable. One can understand the importance and value of a theory of non-bilateral responsibility and the centrality of legality in the modern law of state responsibility. From the perspective of reviewer, however, I wish to add that the strong critique of bilateral model of responsibility is partly missing the right target. The proposed theory of non-bilateral responsibility bears more on the faithful and consequential reading of the modern codification of state responsibility in the ARSIWA than on a revolutionary turnover. Since the objective theory of responsibility, based on the concept of an internationally wrongful act, has been already reflected in the ARSIWA, the real challenge for both the doctrine and practice of international law is not a rejection but the implementation of these rules. I agree with the author that the powers that international courts and tribunals have are often underutilized. (p. 239) However, it seems questionable whether this is a result of the lack of the coherent theory of responsibility or rather of some political and legal problems (such as the limited jurisdiction of the ICJ). In any case, the generality of secondary rules in ARSIWA requires the appropriate and differentiated application of these rules, taking into consideration the differences of the bilateral or other nature of the obligations breached by a wrongful act. While the critique of certain inconsistencies, such as state consent as a circumstance precluding wrongfulness, seems to be convincing, it is partly due to the simplified and common denomination of all the circumstances as precluding wrongfulness instead of the more differentiated approach to defences or exclusion of responsibility. Similarly, the possible confusion regarding invocation of the responsibility under Article 42 (invocation by an injured state) and Article 48 (invocation by any state other than an injured state) results mostly from the unhelpful name of the latter. In substance, however, Article 48 confirms the responsibility erga omnes or erga omnes partes . To conclude, the monograph “Beyond Bilateralism” by Sarah Thin is an extremely interesting and though provoking book. As such, it can be recommended to all scholars of international law and the legal practitioners interested in the theory of international obligations and modern developments of state responsibility.

Pavel Šturma *

* Prof. JUDr. Pavel Šturma, DrSc., is professor at the Department of International Law, Faculty of Law, Charles University in Prague, senior research fellow at the Institute of Law of the Czech Academy of Sciences, President of the Czech Society of International Law and a former member of the UN International Law Commission. He is a co-author of the textbook Public International Law and author of many publications on codification of international law, international criminal law, human rights and international investment law.

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