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Transnational Terrorism and State Accountability: A New Theory of Prevention

ISBN13: 9781849462853
Published: November 2012
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £90.00

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Every State has an obligation to prevent terrorist attacks emanating from its territory. This proposition stems from various multilateral agreements and UN Security Council resolutions.

This study exhaustively addresses the scope of this obligation of prevention and the legal consequences flowing from its violation, so as to provide greater clarity on governments' counterterrorism duties and to enhance State accountability for preventable wrongs. It defines the contents and contours of the obligation while placing critical emphasis on the mechanics of State responsibility.

Whether obscured by new technologies like the Internet, the sophisticated cellular structure of some terrorist organisations or convoluted political realities, the level of governmental involvement in terrorist activities is no longer readily discernible in every instance. Furthermore, the prospect of governments waging surrogate warfare through proxies also poses intractable challenges to the mechanism of attribution in the context of State responsibility.

This monograph sets out the shortcomings of the extant scheme of State responsibility while identifying a paradigm shift towards more indirect modes of accountability under international law, a trend corroborated by recent State and institutional practice.

Public International Law
I. Introductory Remarks
II. Overview of Research
Part I – The International Response to 9/11 and Its Impact on the Law of State Responsibility
Chapter 1: State Responsibility, Terrorism and International Law
I. General Remarks: State Responsibility as a Complementary Solution
II. Emergence of the Obligation of Prevention
III. Counterterrorism Obligations after 9/11 and the Primary/Secondary Divide
IV. The Shortcomings of State Responsibility Vis-à-vis Terrorism
VI. Policy Relevance
Chapter 2: The Impact of 9/11 on International Law and Beyond
I. General Remarks
II. Direct Versus Indirect Responsibility
III. The Concept of Attribution
IV. A Paradigm Shift: Towards a Law of Indirect Responsibility
V. The Security Council's Posture Before and After 9/11
Part II – Rethinking State Responsibility After 9/11: Defining the Scope of States' Counterterrorism Obligations and Implementing a Model to Ensure Compliance with Those Obligations
Chapter 3: Unity Through Vagueness: The Challenges of Devising General Rules of Responsibility
I. Introduction
II. Alternative Response: Causation
III. Developing Guidelines and General Principles for Fact-Intensive, Fact-Specific Phenomena
IV. Doing Away with Attribution: Towards a Model of Strict Liability?
V. Conclusion
Chapter 4: Rethinking the Rationale Underlying State Responsibility for Terrorism: Trans-substantive Rules, Domestic Analogies and the Rationalist Agenda
I. Introduction
II. Revisiting Trans-substantive Rules
III. The Temporal Element of the Breach of an International Obligation
IV. Drawing on Legal Traditions and Domestic Law Analogies to Inform the Law of State Responsibility
V. Mitigating Tensions: Implementing a Model Inspired by Strict Liability
VI. Conclusion: Consolidating Rationalist Theories and State Responsibility
Chapter 5: Implementing a Two-tiered Strict Liability-infused Model
I. Introduction
II. A Two-tiered Strict Liability Mechanism
III. Other Advantages of a Strict Liability Model
IV. Content of the Obligation of Prevention
V. Conclusion: A Partial Politico-Legal Solution Lying at the Heart of International Law

Series: Hart Monographs in Transnational and International Law

Control Beyond the State: Transnational Counter-Terrorism Law ISBN 9781849465595
To be published May 2021
Hart Publishing
Human Rights and Violence: The Hope and Fear of the Liberal World ISBN 9781849465335
To be published March 2021
Hart Publishing
The Institutional Problem in Modern International Law ISBN 9781509927920
Published April 2019
Hart Publishing
The Institutional Problem in Modern International Law ISBN 9781849465229
Published September 2016
Hart Publishing
Transconstitutionalism (eBook) ISBN 9781782251255
Published May 2013
Hart Publishing
Transconstitutionalism ISBN 9781849464185
Published May 2013
Hart Publishing
The Concept of Unity in Public International Law ISBN 9781849460439
Published March 2012
Hart Publishing
The Concept of Unity in Public International Law (eBook) ISBN 9781847319173
Published March 2012
Hart Publishing
The Payment Order of Antiquity and the Middle Ages: A Legal History (eBook) ISBN 9781847318664
Published November 2011
Hart Publishing
The Payment Order of Antiquity and the Middle Ages: A Legal History ISBN 9781849460521
Published November 2011
Hart Publishing
The Institutional Veil in Public International Law ISBN 9781841136349
Published September 2007
Hart Publishing