State Instigation in International Law: A General Principle Transposed
European Journal of International Law (2019 Forthcoming)
22 Pages Posted: 29 Jul 2016 Last revised: 28 Mar 2019
Date Written: December 1, 2018
It is widely believed that international law imposes no general prohibition on instigation - no general prohibition on states inducing or inciting or procuring other states to breach their international obligations. The absence of a prohibition on instigation stands in contrast to the now entrenched prohibition on the provision of assistance to another state that facilitates an internationally wrongful act. In this article, I argue that the orthodox position on instigation is incorrect. I argue that a prohibition on instigation is founded on a general principle of law, as envisaged in Article 38(1)(c) of the Statute of the International Court of Justice, and that it would be appropriate to transpose that general principle to the international legal system. To sustain this argument, I first construct a sufficiently representative set of domestic jurisdictions for comparative analysis. Second, by way of a brief comparative survey I assess whether in each of these domestic jurisdictions it is wrongful, in one way or another, for an actor to instigate another to commit an act that it would be wrongful for it to do itself. And third, I argue that the transposition of this principle from domestic law to international law is conceptually and normatively appropriate.
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