24 Pages Posted: 29 Jul 2016 Last revised: 3 May 2017
Date Written: March 17, 2017
It is widely believed that the law of state responsibility includes no general prohibition on instigation - no general prohibition on states not to induce or incite or procure 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 a wrongful act. In this article, I argue that the orthodox position on instigation is incorrect.
I argue that a prohibition on instigation may be 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 each of these domestic jurisdictions captures, in one way or another, the ways that an actor might instigate another to commit a civil wrong. And third, I argue that the transposition of this principle from domestic law to international law is conceptually and normatively defensible.
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