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Summary Introduction to International and EU law reporting problem 5
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Introduction to International and EU law reporting problem 5
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Introduction to International and European Union lawreporting problem 5
Learning objectives:
- How is the responsibility of states regulated in international law? Or under which
conditions can a state be held accountable/responsible under the ILC articles on
responsibilities of states for internationally wrongful conduct?
- Are there ways to preclude the wrongfulness of an act or permission (or are there
exceptions for state responsibility)?
Literature:
- Henriksen chapter 7
- Case law: Nicaragua, Teheran Hostages, Tadic, Genocide
How is the responsibility of states regulated in
international law? Or under which conditions can a state
be held accountable/responsible under the ILC articles
on responsibilities of states for internationally wrongful
conduct?
To supplement the rules that identify the concrete rights and obligations, a legal system must
have rules specifying what happens when one of the subjects violates its obligations and
how an aggrieved (benadeelde) party can vindicate (rechtvaardigen) its rights. In
international law, these rules are primarily found within the field of state responsibility,
supplemented by the rules on the responsibility of international organizations. The laws on
responsibility are rules of a secondary nature. Primary rules define the substantial
obligations that a state must follow to comply with international law, while secondary rules
determine the consequence of violating the primary rules.
The most relevant rules and principles are found in a series of Articles on Responsibility of
States for Internationally Wrongful Acts prepared by the International Law Commission
(ILC). These articles reflect customary international law.
Core principles and elements of state responsibility
The fundamental principle of state responsibility is reflected in art. 1 of the ILC articles:
‘Every internationally wrongful act of a State entail the international responsibility of that
State.’
Art. 2 of the ILC articles specifies that state responsibility consists of two elements:
1. Conduct must be a breach of an international obligation
2. That conduct must be attributable to a state.
In practice, there is an additional element which is often overlooked in the treatment of the
topic: the existence of an international obligation.
The ICJ referred to the two core elements in reverse order in the Teheran Hostages case,
where Iranian students occupied US diplomatic installations in Iran. The ICJ first had to
, determine if the act was attributable to Iran (could the act be linked to Iran). Second, the ICJ
had to determine if the act was a breach of the international obligations of Iran.
The Teheran Hostages cases illustrates that both acts and omissions can constitute
wrongful conduct.
- In a first phase when the Iranian students seized and took hostages of the diplomatic
premises and the diplomatic personnel of the embassy of the US. The Iranian state
did nothing to clear the premises. This is a violation of international law, because
states are obliged to protect the diplomatic premises of other states.
( here its an omission: failing to do anything)
- In the second phase, not only did the Iranian state do nothing to protect the embassy
of the US, it endorsed and acknowledged the behaviour and the conduct of the
Iranian students. Iran clearly stated in a declaration that they take responsibility for
what the Iranian students are doing and that they support them. This is an application
of art. 11 ILC (on the international responsibility of states). From the moment Iran
acknowledged and endorsed the conduct of the Iranian students, it became the
conduct of Iran. So, whatever conduct the students were acting, was attributable to
Iran itself.
( here it becomes an act: because the students seized and took hostages. And
because of the acknowledgement this is also conduct of Iran)
Under international law there are no distinctions in responsibility. There is no distinction
between criminal responsibility and contractual responsibility for example. According to art.
12 of the ILC articles, an international obligation is breached by a state ‘when an act of that
State is not in conformity with what is required of it by that obligation, regardless of its origin
or character.
For an international obligation to be breached it doesn’t matter if it produced material harm
or damage. This is not an element of international wrongful conduct. It all depends on the
primary obligation and while some primary rules require that actual damage has been
caused in order for it to be international wrongful conduct, others may not.
- For example: an airplane enters the airspace of another state without asking consent.
This is a violation of the territorial integrity of that state. Entering the sovereign
airspace of another state without asking consent is a violation of international law.
Does it create harm or damage? No, it doesn’t. Yet, this is still a breach of
international obligation. It doesn’t matter that no material harm or damages were
produced. This is not a precondition of state responsibility.
Art. 3 of the ILC articles states that: a state cannot justify a breach of its international legal
obligations by invoking its national laws. Moreover, a state must also comply with
international obligations even if it requires breaching its national laws.
Attribution of conduct
One of the core elements of state responsibility is that the wrongful conduct must be
attributed to a state. The issue of attributions is dealt with in articles 4 – 11 in Chapter III of
the ILC articles. The provisions illustrate that states are only responsible for their own acts
and generally not for those of private individuals.
However, the Tehran Hostages case illustrates that a state can still be found in a breach of
its international obligations in relation to acts of private individuals if a state is under a legal
obligation to offer effective protection from such private acts.
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