The Treaty of Westphalia of 1648 divided up the territory of Europe into nations, generating ‘a political imaginary that mapped the world as a system of mutually recognizing, sovereign territorial states’.1 The successful assertion of tax jurisdiction was a critical element of the ‘organizing logics’ of the nation state.2 In the eighteenth century, Adam Smith considered taxation to be essential to make Britain a ‘great nation’ in an international order of other nations. By the twentieth century, the nation state operated in what Nancy Fraser termed the ‘Keynesian-Westphalian’ frame,3 built on a market economy and a ‘tax and welfare state’ that was actively interventionist in the economy and had a core role of redistribution. Taxation was territorially and economically bounded, and claims for intervention in the market and for distribution were mostly internal, or domestic, claims on the state.

There are important doctrinal and institutional obstacles in the way of proper treatment of collective legal responsibility of several States for global environmental harm, but no serious theoretical obstacles. Difficult theoretical issues do arise at the level of justification, however. The chapter investigates how legal and moral responsibility of individuals, States, and collectives of both all fit together as a normative matter, using global environmental harm as its case study. It argues that shared moral responsibility – the responsibility an individual has when acting together with others – is a very important moral phenomenon. By contrast we have no need for the idea of a collective (such as a State) itself being morally responsible. Ideally, the shared ex ante moral responsibilities of individuals together to reduce greenhouse gas emissions would be discharged by domestic law under the guidance of international law. Where non-complying States face sanctions, the burden of those sanctions will be imposed on individuals who are not responsible for their State’s failure. Yet citizens have political obligations to improve their States, including in the matter of compliance with international law. If the sanctions can be seen as doing citizens’ work for them, the burdens imposed do not seem objectionable.

Chapter 4 examines the ways that transnational regulatory regimes are organized and governed. It also explores how the tension explored in Chapter 3 between a functional concern for efficacy and a functional concern for interest balancing finds resonance in a tension between a regime adopting a more exclusivist form of governance called the ‘club model’ or a more inclusive form of governance the chapter refers to as the ‘pluralist model’ – with the pluralist model being further divided into a more hierarchical form called the multi-stakeholder initiative, and a more decentralized form called networks. All have their own set of comparative advantages and disadvantages. Also explored is how the interaction between these two models of governance, on the one hand, and the two kinds of regulatory functions explored in Chapter 3, on the other, can give rise to issues of ‘operational legitimacy’. Finally, Chapter 4 investigates efforts to constrain possible abuses of power by transnational governance regimes, much like public law works to constrain possible abused of power by domestic governments. These efforts are generally referred to as ‘global administrative law’.

This chapter recalls the distinction between responsibility and liability as it emerged in the work of the International Law Commission and its inherent difficulties, before turning to its relevance in relation to the interplay between the obligation to prevent harm and the prohibition to cause harm, the question of cessation and the procedural treatment at the International Court of Justice of the issues of injury, causality and reparation owed. The chapter questions the received wisdom according to which ‘responsibility’ and ‘liability’ would be two different legal genres and argues that the dichotomy between them is porous.

Chapter 5 examines both the enforcement of transnational regulation and the ways it is resisted. Its analysis revolves around a particular model for regulatory enforcement developed by John Braithwaite and Ian Ayers called the ‘regulatory pyramid’. This involves first focusing on cooperative enforcement, moving on to the employment of negative incentives when these cooperative efforts fail, and culminating in punitive enforcement involving social and/or economic incapacitation when negative incentives fail. Transnational regulatory regimes frequently evince a similar structuring of their enforcement activities, which generally start with negotiation and persuasion, move up to incentive-based enforcement techniques such as reputational enforcement, and sometime moving even further to incapacitating enforcement techniques such as expulsion or blacklisting. How a regime structures its ‘regulatory pyramid’ can have significant impact on its organizational legitimacy. Chapter 5 also explores the techniques regulatory subjects use resist regulatory obligations – including indifference, ‘creative compliance’, and overt challenge.

Tax policy refers almost universally to principles of equity, efficiency and simplicity, with modifications in definition and emphasis in different contexts.1 These three principles originate in four Maxims of taxation developed by Adam Smith early in the era of the tax state: equity, certainty, convenience and efficiency.

This chapter starts by observing that public responsibility is still understood in very different ways throughout the world, depending largely on the political, social and cultural background of each State. The Chinese, Middle Eastern, African and Central European examples presented bear witness to this reality, and in particular to the close link between the development of public responsibility and the emancipation of the individual from the State and the collectivity. The great diversity of national and supranational practices on a world-wide scale – in a context marked by global challenges and by the still essential role of the Nation-State framework – makes a comparative legal approach essential, not only to prevent unwarranted standardization, but also to bridge differences and ‘further compatibility’.

This chapter raises the question whether attribution of wrongful acts to the State is based on ‘objective’ causal chains or ‘subjective’ mental states. It argues that attribution of conduct to the State is not primarily causal or fault-based. First, it shows that several of the Articles on the Responsibility of States for Internationally Wrongful Acts cannot be understood in terms of causation or fault. Second, it argues that causal and fault-based theories of attribution are either circular or incomplete. Instead, the chapter claims, the logic of attribution is primarily functional. The rules of attribution converge around the central principle that an act of State is an act performed in the service of a State function, such as defence or detention. Functional attribution is best understood as ‘intersubjective’: it is determined not by objective causal chains or by subjective mental states, but by shared ideas about the functions of the State and what it means to perform them. The functional character of the rules of attribution allows them to adapt to economic and technological changes, such as the growth of corporations and the development of autonomous weapons.

The long history of taxation in empires, kingdoms and nations has been studied by legal, economic and political historians.1 The history of the ‘tax state’, or a government that is dependent on the power and capacity to tax, is much shorter – at most, about 250 years. A ‘tax state’ is established when a sovereign is able to raise sufficient tax revenues to consolidate, stabilise and centralise government based on this source of finance.2

International responsibility law today is in great need of theorizing or, at least, that is the present volume’s argument. This introduction sets the stage for that argument. It unfolds in four steps: first, it clarifies the reasons that led to putting this collection of essays together and explains what it hopes to achieve; second, it introduces the main theoretical challenges addressed in the volume; third, it provides some information about how the book is organized; and, finally, it sketches out the content of its successive chapters and their articulation.

When considering ways for preventing Member States from hiding behind the institutional veil of the organization, two distinct approaches can be identified. The first focuses on the position of the Member State as a subject endowed with its own distinct personality and holder of its own rights and obligations. According to this approach, when the State acts as a member within or on behalf of the organization, it continues to be bound by its obligations and may be held individually responsible for their breach. The second approach focuses on the position of the State qua member of the organization. It relies on the institutional link binding together the organization and its members to affirm that, under certain circumstances, all members should be called upon to bear the consequences of the wrongful acts of the organization in a collective way. While much of the debate on the risk of abuse of the organization’s institutional veil tends to focus on the question of collective responsibility of members, the chapter argues that in practice it is through different forms of individual responsibility that the organization’s institutional veil has been pierced or circumvented.

This chapter explains how, in the wake of the reforms implemented since the early 1980s and the desire to provide a legal framework for State action, successive statutes have laid the foundations for a system of responsibility of public authorities in the People’s Republic of China. Despite the establishment of mechanisms to enforce State responsibility, the system still suffers from a number of shortcomings. Some are inherent in the reluctance of any State to be held responsible; others are more specific and outline the contours of a regime of responsibility specific to China at a time when the country wishes to assert a government model to compete with liberal democracy. In the background, a regime of political rather than legal responsibility has emerged, which both limits the obstacles to public action (in order to ensure efficiency) and emphasizes the government’s duty to ensure common prosperity. The report examines the Chinese bureaucratic culture, its history and the specificities of the current political system to explain the origin of this specifically Chinese conception of the responsibility of public authorities.