Instigation in International Law: a Comparative Private Law Analysis

It is orthodox doctrine that the law of state responsibility includes no general prohibition on instigation - no general obligation on states not to induce or incite or procure another state to breach its international obligations. The absence of the prohibition on instigation stands in contrast to the now entrenched prohibition on the provision of assistance to another state that facilitates a wrongful act. Underlying the orthodox position is the idea that there is simply insufficient state practice to ground the putative rule.

In this paper, I argue that the orthodox position is incorrect. I do not challenge it on the basis of a new reading of the relevant state practice. Instead, I argue that a prohibition on instigation may be founded on a general principle of (domestic) law, as envisaged in Article 38(1)(c) of the Statute of the International Court of Justice, and that it is appropriate to transpose that domestic principle to the international legal system. To make this claim, I first construct a sufficiently representative set of domestic jurisdictions, engaging with comparative law literature on legal systems, legal traditions, and legal families. 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.

The meeting will be held in the Old Rectory Teaching Room (for a map, see here).

Sandwiches and refreshments will be available from 12.30. The discussion will begin at 1pm.