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Samenvatting uitwerkingen leerdoelen international and european law nabespreking 3
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EU/INTERNATION LAW PROBLEM 3Literature:
- Henriksen, International Law, Chapter 7 and 12
Case law:
- Nicaragua (Judgment of 27 June 1986)
- Tehran Hostages (Judgment of 24 May 1980)
- The Prosecutor v. Duško Tadić (Appeals Chamber 15 July 1999)
- North Sea Continental Shelf Cases (Judgment of 20 February 1969)
1. How is the responsibility of states regulated in international law?
The most relevant rules and principles on state responsibility are found in a series of Articles
On Responsibility of States for Internationally Wrongful Acts prepared by the International
Law Commission (ILC).
The ILC articles are unlikely to be developed into treaty, but they are generally considered to
reflect customary international law.
7.2 the basic principles of state responsibility
The fundamental principle of state responsibility is reflected in art. 1 of the ILC articles, which
stipulates that ‘Every internationally wrongful act of a State entails the internation
responsibility of that State’.
Art. 2 illustrates two elements of state responsibility.
1. Conduct must be a breach of international obligation
2. That conduct must be attributable to a state
Tehran Hostage case: the ICJ found that Iran had breached its international
obligations under the VCDR by failing to protect the US premises from Iranian
protesters
Art. 12 ILC 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’ standard of liability depends on the primary legal source (treaty, convention)
7.3 attribution or conduct
According to art. 4 ILC, 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.
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.
According to art. 5 ILC, conduct of individuals and entities empowered to exercise
governmental authority is attributable to the state whenever they act in that capacity.
a state cannot avoid responsibility by outsourcing function that are properly
governmental
relevant to the privatization of certain military and police functions
, attribution under art. 5 requires that the entity is empowered by the internal laws of the
state to conduct the governmental authority
According to art. 6 ILC, acts of the ‘loaned’ organ are attributed to the receiving and not the
sending state
requires that the organ in question is actually placed under the authority or structure of
the receiving state and does not retain its autonomy and that the organ exercises
governmental authority
According to art. 7 ILC, a state remains responsible for conduct performed by its organs and
officials even if the organ or official acted contrary to orders and instructions or in excess of
authority (= conduct ultra vires)
determination is ‘independent of whether the organ or official has contravened provisions
of internal law or overstepped the limits of his authority
responsibility is triggered when an organ or official acts with ‘apparent authority’
According to art. 8 ILC, a state is only responsible for the conduct of a person or a group of
persons if the latter is ‘in fact acting on the instructions of, or under the direction or control
of, that state in carrying out the conduct’.
The individuals must be
1. acting on the instructions or orders of the state
2. acting under the direction or control of the state
Nicaragua case – the Court did not find that the acts of the contras could be attributed to
the US since that would require that the US ‘had effective control of military operations’
no responsibility for ultra vires acts performed by persons who merely operate under the
direction or effective control of the state
According to art. 10 ILC, the state will be responsible for the acts of an insurrectional
movement when it succeeds in assuming power and establishes itself as the new
government, or manages to form a new state in part of the territory of the pre-existing state.
According to art. 11 ILC, a state becomes responsible for a conduct that was not attributable
to it when it was committed if it subsequently acknowledges and adopts it as its own
Tehran Hostages – ICJ found that acts of the Iranian government subsequent to the
hostages became acts of the Iranian state because of their approval and using the
occupations to pressure the US
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