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Terrorism and the State: Rethinking the Rules of State Responsibility

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ISBN13: 9781841136271
ISBN: 1841136271
Published: March 2006
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback
Price: £36.99



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The alarming rise in international terrorist activity since the attacks of September 11th has generated intense debate about the principles by which State responsibility for private acts of terrorism is determined in international law. This book analyses the legal principles that govern State responsibility for the conduct of non-State actors and examines their relevance and effectiveness in an increasingly interconnected world.

The book argues that traditional approaches to determining the State's legal responsibility for violations of these counter-terrorism obligations lack conceptual coherence, fail to enhance State accountability for protecting civilians from private violence and are poorly suited to coping with today's terrorist threat. Drawing on a wide array of precedents and legal sources, the study offers a novel approach to regulating State responsibility for private violence that is grounded in principles of causation.

The book argues that causation-based State responsibility for terrorism can be reconciled with the International Law Commission's Draft Articles on State Responsibility and offers a conceptual and legal framework that is better equipped to deal with the subtle interactions between State and non-State actors that make contemporary terrorism possible.

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Subjects:
Public International Law
Contents:
1. Introduction
1.1 Terrorism and the State
1.2 The Law of State Responsibility for Private Acts
1.3 The Challenge of September 11th
1.4 Overview of Research
Part I: State Responsibility for Private Acts: Theory and Practice
2. State Responsibility for Private Acts: The Evolution of a Doctrine
2.1 Introduction
2.2 The Origin of State Responsibility and the General Principle of Non-Attribution of Private Acts
2.3 The Doctrine of Collective Responsibility
2.4 The Theory of Complicity
2.5 The Janes Case
2.6 The Condonation Theory and the Calculation of Damage
2.7 The Separate Delict Theory
2.8 The Presentation of the Separate Delict Theory to the ILC
2.9 Conclusion
3. The Agency Paradigm: The Principle of Non-Attribution and its Exceptions
3.1 The Principle of Non-Attribution of Private Acts and the Separate Delict Theory: The ILC Text and the Claim of Universal Application.
3.2 Recent Applications of the Separate Delict Theory
3.3 The Exceptions
3.4 Conclusion
Part II State Responsibility for Private Acts of Terrorism: Conventional Perspectives
4. To Prevent and to Abstain: International Obligations of States with Respect to Terrorism
4.1 Introduction
4.2 Towards a Definition of Terrorism
4.3 Counter-Terrorism Obligations of the State: The Duty to Prevent and to Abstain
4.4 The Standard of Care and the Burden of Proof: Determining State Responsibility for Violations of Counter-Terrorism Obligations
4.5 Conclusion
5. State Responsibility for Private Acts of Terrorism
5.1 A Distinction with a Difference
5.2 State Resonsibility for Private Acts of Terrorism before September 11: Three Theories
5.3 Use of Force as Lex Specialis
5.4 State Practice before September 11th
5.5 Conclusion
6. The Challenge of September 11th and the Academic Response
6.1 September 11th and the International Reaction
6.2 The Academic Response
6.3 Conclusion: The Dissonance between Theory and Practice
7. Inadequacies of Existing Approaches to State Responsibility for Terrorism
7.1 Introduction
7.2 Contemporary Forms of State Involvement in Terrorism
7.3 The Inadequacies of the Agency Paradigm
7.4 The Inadequacies of Use of Force Standards
7.5 The Inadequacies of Absolute or Strict Responsibility
7.6 Towards a Model of State Responsibility for Terrorism: The Inter-penetration of the Public and Private Sphere
7.7 Conclusion
Part III: State Responsibility for Terrorism: A Causal Analysis
8. Causation-based Responsibility
8.1 Introduction: Agency and Causation
8.2 A Word about Private Law Analogies
8.3 Common Sense Causation: Some Basic Principles
8.4 Echoes of Causation-based Responsibility in International Law
8.5 Conclusion
9.Causation-based State Responsibility for Terrorism
9.1 Introduction
9.2 A Causal Model of State Responsibility for Terrorism: Applying a Four-step Process
9.3 Returning to the Problem of Burden of Proof
9.4 Testing the Practical Viability of a Causal Model
9.5 Conclusion: The Policy Benefits of a Causal Model and its Status under International Law

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