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In this article, I argue that international law has a major structural crack:
the limited international legal capacity of non-states, and a high threshold of
attribution to states. A great deal of international conduct thus remains unregulated.
I further explain that this is not only a gap in responsibility but in fact a gap in
international legal regulation. The law of international responsibility overlaps with
the law of international legal capacity. For the most part, it is thus only states and
international organisations which are even conceptually able to violate international
law directly. If a certain conduct is not attributable to them, it will not be internationally
wrongful. I also suggest that the division between the primary and secondary
rules of international law is confusing and arbitrary, and certainly should not
be understood as a sequential order. In the conclusion I argue that scholarship has
been perhaps too preoccupied with addressing certain symptoms of the ‘great
structural crack’ in international law, while the real problem lies in the unclear
concept of international legal capacity.