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Summary probleem 3 Introduction to International and European Union Law
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Working group elaborations problem 3 Introduction to International and European Union Law
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Problem 3 IEL1. How is the responsibility of states regulated in international law?
State responsibility: an area of international law that is indispensable (onmisbaar) for the
well-functioning of international law and society.
To supplement the rules that identify the concrete rights and obligations, a legal system
must have rules specifying what happens when a subject violates its obligations and how an
aggrieved party can vindicate 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 (theoretically) rules of a secondary nature.
- Primary rules define the substantial obligations a state must follow to comply with
the law.
- Secondary rules determine the consequences of violating primary rules.
The question of responsibility depends on whether a treaty obligation is binding upon a state
or not.
International corporations do not hold responsibility under international law.
The most relevant rules and principles on state responsibility are found in a series of Articles
of Responsibility of States for Internationally Wrongful Acts prepared by the International
Law Commission (ICL). The ICL articles are unlikely to be developed into a treaty, but they
are generally considered to reflect customary international law.
The basic principles of state responsibility
The starting point of state responsibility is the existence of an international obligation.
The fundamental principle of state responsibility is reflected in art.1 of the ILC articles:
‘Every internationally wrongful act of a State entails the international responsibility of that
State’.
Art. 2 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 the two core elements in reverse order in the *Tehran Hostage case.
A few basic points about liability (aansprakelijkheid) in international law:
- National legal systems generally operate with different forms of liability depending
on the primary obligation. Such distinctions don’t exist in international law.
Art. 12 ICL 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 character. the standard of liability depends on the primary
legal source.
- Absence of a distinction between ‘civil’ and ‘criminal; illegality.
State responsibility does not always require that damage in the form of material or other
actual losses, it all depends on the primary rules.
The existence of actual damage may be relevant:
- When determining reparations for wrongful conduct.
, - When determining who can invoke the responsibility of a state that is breaching its
obligations.
Art. 3 ICL articles: the characterization of an act of a state as internationally wrongful is
governed solely by international law a state can’t justify a breach of its international legal
obligations by invoking its national laws and a state must also comply with international
obligations even if it requires breaching its national laws.
Attribution of conduct
A core element of state responsibility is that wrongful conduct must be attributable to a
state. (Art. 4-11 Chapter III of the ICL articles);
- States are only responsible for their own acts and not for those of other states of
private individuals.
*Tehran Hostage: a state can breach its international obligations in relation to acts of
private individuals if the state is under a (primary) legal obligation to offer protection from
such acts.
Principle of due diligence in international law: a state is obliged to seek to prevent all
activities – including that of private individuals – that occur on its own territory from causing
significant damage in another state.
Principles of state attribution:
Art.4 ICL articles (attribution for acts performed by the state and its organs): 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’. Organ includes
any person or entity with an official status in the internal law of the state.
A state can’t 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 *Genocide. As a main rule,
conduct by the authorities of subunits in a federal state is attributable to the state.
Art. 5 ICL articles (attribution for acts performed by organs exercising governmental
authority): conduct of individuals and entities empowered to exercise governmental
authority is attributable to the state whenever they act in that capacity. Attribution
requires that the entity is empowered by the internal laws of the state to conduct the
governmental authority.
The content of the powers granted as well as ‘the way they are conferred on an entity,
the purposes for which they are to be exercised and the extent to which the entity is
accountable to government for their exercise’ may offer some assistance.
A state can’t avoid responsibility by outsourcing functions that are properly governmental. Is
of relevance to the privatization of certain military and police functions.
Art. 6 ICL articles (attribution for acts by organs ‘on loan’ from another state: covers the
rather exceptional situation where a state places one of its organs at the disposal of
another state. For example health service units in crisis situations and the occasional
appointment of judges. Acts of the ‘loaned’ organ are attributed to the receiving and not
the sending state. This requires that the organ in question is actually places under
authority/structure of the receiving state which exercises governmental authoritiy.
Art. 7 ICL articles (responsibility for acts ultra vires): a state remains responsible for
conduct performed by its organs and officials even if the organ or official acted contrary
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