The General Claims Commission (Mexico and the United States) and the Invention of International Responsibility
in: I. de la Rasilla del Moral and J. Vinuales (eds), 'Experiments in International Adjudication - Historical Accounts' (CUP 2018).
22 Pages Posted: 2 Apr 2018
Date Written: March 27, 2018
The present chapter seeks to shed a new light on the history of the making of the doctrine of State Responsibility. It construes the elaboration of the rules thereof from a new perspective, namely that of the invention of an argumentative tradition. In doing so, this contribution repudiates any understanding of the making of the doctrine of State Responsibility as a law-making process properly so-called. In this paper, the idea that the making of the doctrine of State Responsibility corresponds to a process of invention of an argumentative tradition is specifically developed by reference to the way in which the awards of the 1924-1934 General Claims Commission (Mexico and United States) (hereafter the GCC) have been used by the International Law Commission (hereafter the ILC) to stage the authority of the modes of legal reasoning which it has de-signed and chosen for the determination and allocation of the burden of compensation for a prior harm and the exercise of constraints to restore and protect legality. Indeed, the invocation of the awards of the GCC to support the choices of the ILC epitomizes the extent to which the making of the doctrine of State Responsibility - as it is found in ARSIWA - can be approached from the vantage point of the invention of an argumentative tradition. This means that, for the sake of this chapter, the experience of the GCC is deemed a decisive experiment, not for its contribution to the development of international dispute resolution mechanisms or of general international law or as a the receptacle of temporal processes, but, rather, as the epitome of how the history of the central modes of legal reasoning of international law are invented by reference to imaginary precedents with a view to staging their authority.
Keywords: international law, state responsibility, ARSIWA, arbitration, General Claims Commission, tradition, staging authority, rebels, attribution
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