Summary Comprehensive elaboration of problem 3 Introduction to International and European Law
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Course
Introduction To International And European Law
Institution
Erasmus Universiteit Rotterdam (EUR)
Here you will find the extensive elaborations of the learning objectives of problem 3 of Introduction to International and European Law.
Books used:
- A. Henriksen, International Law (third edition)
- Cases and Materials International and European Union Law
Problem 3
How is the responsibility if states regulated in
International Law?
Distinction between primary and secondary rules: Primary rules are those that define the
obligations that a state must follow to comply with international law, whereas secondary
rules determine the consequences of violating the primary rules.
The secondary rules on state responsibility identify the legal consequences that are
associated with a breach of the law on state immunity.
The most relevant rules and principles can be found in a series of Articles on Responsibility
of States for Internationally Wrongful Acts prepared by the International Law Commission
(ILC). These articles will probably not develop into treaties, but they reflect customary
international law.
The basic principles of state responsibility
The fundamental principle of state responsibility is reflected in article 1 of the ILC: Every
internationally wrongful act of a State entails the international responsibility of that State.
Article 2 of the ICL articles illustrates 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.
The ICJ referred to these two elements in reverse order in Tehran Hostages: The court had to
determine how far, legally, the acts in question may be regardable as imputable to the
Iranian State, and their compatibility or incompatibility with the obligations of Iran (Par. 56).
The ICJ had found that Iran had breached its international obligations under the Vienna
Convention on Diplomatic Relations (the primary rules) by failing to offer protection from
Iranian citizens to the US premises (Par. 67).
Distinctions in liability such as standard contract liability or criminal law do not exist, and
article 12 of the ILC articles states that 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.
State responsibility does not always require that damage in the form of material or other
actual losses has been caused by an act or omission. It depends on primary rules. For
example, rules relating to marine pollution require that actual damage has occurred, whilst
rules that set out standards for behaviour do not require this.
Article 3 of the ILC articles shows that the characterization of an act of a state as
internationally wrongful is governed solely by international law. A state cannot justify a
breach of international legal obligations by invoking national law.
, Attribution of conduct
A wrongful conduct has to be attributable to a state. This is dealt with in articles 4-11 in
Chapter III of the ILC articles. States are only responsible for their own acts and generally not
for those of private individuals. In Tehran Hostages however, it is stated that a state can still
be found to be in breach of its international obligations, for example by not providing
protection from private acts.
Attribution for acts performed by the state and its organs
According to article 4 of the ILC articles, all conduct of state organs is considered an act of
the state regardless of whether the organ in question exercises legislative, executive, judicial
or any other functions.
The term ‘organ’ is interpreted broadly and includes any person or entity with an official
status in the internal law of the state. Attribution is also triggered by conduct by low-level
state officials as long as they act in an official capacity. A state cannot avoid responsibility for
acts or omissions of an entity that in practice functions as a state organ by denying it an
official status in its internal laws.
This has been confirmed in Genocide. The case was that the Court had to determine if the
Federal Yugoslavian government in Belgrade was internationally responsible for the 1995
Srebrenica massacres in Bosnia perpetrated by local Bosnian Serb forces without official title
as state organ. They would only be considered organs of the state when they would act in
complete dependence on the State, of which they are ultimately merely the instrument.
That was not proven (Par. 388-392). The court also stated that to equate persons or entities
with state organs when they do not have the official status, the circumstances had to be
exceptional (Par. 393).
Attribution for acts performed by organs exercising governmental authority
Article 5 of the ILC articles concerns a state’s responsibility for acts of individuals and entities
that exercise authority normally exercised by a state even though they do not have an
official status. The article specifies that conduct of individuals and entities empowered to
exercise governmental authority is attributable to the state whenever they act in that
capacity. Attribution under article 5 is limited to cases where the entity is empowered by the
internal laws of the state to conduct the governmental authority in question.
Attribution for acts by organs on loan from another state
Article 6 of the ILC articles covers the situation where a state places one of its organs at the
disposal of another state. Acts of such organs are attributed to the receiving state.
Responsibility for acts ultra vires
A state remains responsible for conduct performed by its organs and officials in cases where
the organ or official acted contrary to orders and instructions or in excess of authority. This
has also been mentioned in article 7 of the ILC articles.
Attribution for acts performed by private individuals
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