Clear and neat elaboration of tutorial group 1 of Public International Law.
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Under what circumstances can a State be held responsible?
The rules on state responsibility are concerned with whether there has been a breach of
an international obligation, attribution, defences and the legal consequences of a breach.
These rules are laid down in the Articles on the Responsibility of States for Internationally
Wrongful Acts (ARSIWA/ASR) by the International Law Commission (ILC). These ILC
Articles do not constitute a treaty, but it refects on customary international law. Please
note: responsibility is determined on the basis of international law, not domestic law.
Two basic principles of State Responsibility:
A. States can be held responsible for acts that are attributable to them
B. States can only be held responsible for internationally wrongful acts:
acts that are committed in violation of an international obligation incumbent on the State.
A - States can be held responsible for acts that are attributable to them
Art. 1 ILC Every international wrongful act of a state entails a state responsibility
Art. 2 ILC An internationally wrongful act by a state must fulfll all three conditions:
1. there must be an act or omission;
2. which is attributable to that state under international law; and
3. it must constitute a breach of an international obligation of that state
Art. 12 ILC a breach of an international obligation exists when an act or omission is not
in conformity with what is legally required. And these articles show that a wrongful act
can consist of one or more acts/omissions.
UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN (TEHRAN
HOSTAGES)
In this case the International Court of Justice (ICJ) found that Iran was responsible both for
its acts (specifcally, the endorsement of the hostage taking and the occupation of the USS Embassy
by private militants) and for its omissions (specifcally, the inaction of its authorities to protect
the American embassy and its staf).
In the case also art. 11 ILC is applicable: it stipulates that the conducts of private actors
could be attributed to a state, when the state concerned endorses and adopts the acts of
the private actors as its own. (This took place in 1970s, whereas the ARS was endorsed in 2001
> codifcation)
B - States can only be held responsible for internationally wrongful acts
States can only be held responsible for acts which can be attributed to them. A state,
being an abstract entity, can only act by and through its organs or agents. When the
state had no relation whatsoever to the actions, then the state will not be held
responsible.
Conduct of State organs
Art. 4 ILC general rule: any act or omission of an organ of a state shall be considered an
act of that state under international law. However, the person must act in an ofcial
capacity and not as a private person. Art. 7 ILC someone who exceeds their powers (=
ultra vires act), does not excuse the state from responsibility: the state must control its
ofcials and organs.
Conduct of private entities
General rule: state is not responsible for the conduct of private entities, unless
Art. 5 ILC 1. they perform public functions e.g. private security contractors hired by states
Art. 6 ILC Even if such entities are placed at the disposal of one state by another state
Art. 8 ILC 2. they perform acts over which the state exercises control (Nicaragua case, on the
degree of control required)
Art. 11 ILC 3. they perform acts acknowledged and adopted by a state as its own
(Teheran Hostages case); or fails to prevent the violation
4. they, de facto/in fact, exercise governmental powers when the ofcial authorities are
absent or defunct.
Literature: Chapter 7 & 9 – International Law, Part 8 & 9 – E-learning, Article on the Responsibility of States
for internationally Wrongful Act, Vienna conventions on diplomatic relations 1
Cases: Tehran Hostages/Nicaragua/Gabčíkovo-Nagymaros/ La Grand
, Tutorial 1
UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN (TEHRAN
HOSTAGES)
The Teheran Hostages case was a dispute between the USnited States and Iran. On 4
November 1979 Iranian students overrun and seized the USnited States Embassy
compound in Teheran. The following day Iranian students attacked the Consulates at
Tabriz and Shiraz. In the end 52 USnited States diplomats were held hostage in the
American Embassy until 20 January 1981. The ICJ held Iran responsible for the attacks as
it had violated its obligations under the Vienna Conventions on Diplomatic (article 22) and
Consular Relations to protect the USnited States Embassy and Consulates, their staf and
archive (1st phase). The ICJ also held Iran responsible for the continuing occupation of the
Embassy by the Iranian students (2nd phase).
Relevant paragraphs 61,68, 73, 74
MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA
(NICARAGUA V. UNITED STATES OF AMERICA)
The Nicaragua case was a dispute between Nicaragua and the USnited States. Nicaragua
brought the matter to the ICJ, alleging that the USnited States acted in violation of its
international obligation not to use force and not to interfere in the internal afairs of other
states by undertaking several attacks against Nicaragua and by equipping and supporting
a rebel group, the Contra, that undertook various attacks in Nicaragua. Most important in
relations to the discussion on state responsibility is the decision of the Court with regard
to the responsibility of the USnited States for the actions of the Contras. The Court
determined that the USnited States indeed equipped, trained, and supported the Contras,
but the actions of the Contras would not be attributed to the USnited States as it did not
have 'efective control' over the activities of the Contras.
Relevant paragraphs 115
APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF
THE CRIME
OF GENOCIDE (BOSNIA AND HERZEGOVINA V. SERBIA ANDMONTENEGRO)
The ICJ suggested that the ‘overall control’ rest adopted by the ICTY was unsuitable for
purposes of state responsibility although It may have been of use in determining whether
the confict in Yugoslavia was in fact an international confict. The Court found the ‘overall
control’ test unsuitable, because it stretches too far. So, under the ‘overall control’ test, a
fairly slender connection could sufce to attribute to responsibility.
Relevant paragraphs 404, 406
A special case is provided by insurrectional movements art. 10 ILC: these are by
defnition not state organs; their aim is to overthrow the state or to secede (staatsgreep plegen/
afscheiden).
What are exceptions for the responsibility?
A state may justify or defend an act in breach in certain circumstances. If the defence is
successful, a state will not be held responsible: wrongfulness will be precluded/avoided.
Noted: an act that takes place because of another state’s wrongful act, may be justifed.
These circumstances are set out in Chapter V, thus in the articles 20 -25 ILC, and are
limited:
consent of the victim state (party)
self-defence was needed e.g. the use of military force against another state, in accordance with the
USN Charter
force majeure refers to a situation when a state is not able to perform its international
obligations due to an irresistible force or an unforeseen event that is beyond the control of that
State, e.g. earthquake.
Distress when an international obligation is breached as a last resort in order to save lives
Necessity when such breach of obligation is needed in order for a state to safeguard a state's
'essential interests' against a 'grave and imminent' danger, e.g. fring a ship that leaks oil – Article
25 ILC (negatively formulated)
THE GABÇIKOVO-NAGYMAROS PROEECT (HUNGARY V. SLOVAKIA)
2
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