“Responsibility of State” by Prof. HAMAMOTO Shotaro

Prof. Hamamoto is Professor of the Law of International at Graduate School of Law, Kyoto University.
Various provisions of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), adopted by the International Law Commission and taken note of by the United Nations General Assembly in 2001, are today widely referred to and relied on by States and international courts and tribunals. The major virtue of the ARSIWA is its clarity and simplicity, represented by the separation between what are called “primary” and “secondary” norms. However, despite its apparent clarity, the ARSIWA leaves a number of questions unanswered. The present lecture attempts to uncover often contradictory policy considerations involved in such unanswered questions. Examples to be dealt with are the police powers doctrine applied to indirect expropriation (the distinction between primary and secondary norms), acts of members of UN peace-keeping forces (attribution), rules of compensation applicable to private parties (Article 33(2) ARSIWA), and third-party countermeasures (Article 54 ARSIWA).