Samenvatting International Public Law
Problem 1
When is a state responsible and what are the conditions?
State responsibility: two basic principles
The International Law Committee (ILC) based their articles on state responsibility on two
foundational principles. The first one is that states can be held responsible for acts that
are attributable to them. The second one is that states can only be held responsible for
internationally wrongful acts; acts that are somehow committed in violation of an
international obligation incumbent on the state.
Internationally wrongful act
Art. 1 ILC says that every international wrongful act of a state responsibility entails. Art. 2
follows with three conditions for an act to be considered internationally wrongful:
- there must be an act or omission;
- which is attributable to that state under international law;
- it must constitute a breach of an international obligation of that state (Art. 12).
This means that under the articles on state responsibility, states can only be held
responsible for acts that violate their international legal obligations. In the case of an
allegation of a treaty violation, this presupposes that the state is a party to the treaty in
question. If it is not, no legal obligation is incumbent upon it, and hence it cannot be held
responsible, even if the behaviour in question is quite obnoxious. This implies that states
cannot be held responsible for activities that are harmful or cause damage, but are none
the less legal. For example, if a state accepts the death penalty and is not a party to any
treaty that outlaws it, then the state cannot be held responsible for the execution of a
convicted criminal who is a foreigner, even though the execution causes literal harm.
In other words, international law does not utilize a system of strict or absolute liability;
the wrongful act is an essential requirement. There are exceptions, though:
- States are responsible for damage caused by satellites it has sent into orbit, even if
launching and maintaining satellites is legal;
- It is possible to bring a complaint under GATT/WTO law against a state for causing
economic damage, even without applicable rules being violated, as long as benefits
under the trading regime are at stake;
- States are sometimes considered responsible for damage caused under some
environmental agreements, even without a violation, although explicit treaty
provisions to this effect are rare.
Generally, damage or harm is not treated as a precondition; what matters is the violation
of an international obligation, whether this creates material damage or not.
Attribution
States do not have souls or minds and thus shouldn’t be able to be accused of criminal
intent or negligence. The idea that states can be held responsible for acts attributed to
them is however generally regarded as a useful legal fiction, since it is often desirable
that someone be held responsible and be given the chance to rectify a situation. Since
most international law-related activities are beyond the powers of single individuals, it is
useful to employ the idea that states may be held responsible, at least for activities that
are attributable to states.
This has the important corollary that states are, as a matter of principle, not responsible
for the activities of private parties. If a foreigner gets killed in Japan by a serial killer, then
Japan shouldn’t be held responsible, unless Japan is somehow implicated. If an action
bears no relation to the state, the state cannot, and will not be, responsible.
The state will be held responsible, however, for the acts of its organs and its officials,
even those who acts outside their proper competences (ultra vires, see also art. 7 ILC).
The general rule is that any act or omission of an organ of a state will be considered an
act of that state under international law (art. 4 ILC).
The underlying theory is that the state must control its officials and organs, if only
because no one else can. This means that torture by a rogue police officer or plundering
by military troops will engage the responsibility of the state concerned. The state can of
course not be held responsible for acts of its officials in their spare time. If, for example, a
police officer on his free day gets engaged in extortion of tourists, the state can hardly be
, held responsible, but this may change if the police officer wears his uniform and uses his
badge to facilitate the extortion.
An important consideration is that responsibility is determined on the basis of
international law. The domestic law considerations are not decisive, so a state cannot
hide behind its constitutional provisions for escaping responsibility.
Responsibility and private acts
In principle, a state is not responsible for the conduct of private entities, unless:
- they perform public functions (art. 5 ILC), for instance a private security contractor
hired by states, even if such entities are placed at the disposal of one state by
another state (art. 6 ILC);
- they perform acts over which the state exercises control (art. 8 ILC) → Nicaragua-
case.
- They perform acts acknowledged and adopted by a state as its own (art. 11 ILC) →
Tehran Hostages case.
So, states cannot be held responsible for the purely private acts of their citizens. Yet
situations may occur where a state may incur what can be termed ‘indirect’
responsibility. This is the case, for instance, if a state acknowledges and adopts illegal
private acts or fails to prevent them in violation of an international legal obligation.
→ USA v. Iran (Tehran Hostages)
Facts: In 1979, groups of so-called militant students took part in the Iranian revolution
and occupied the US embassy in Tehran and held their staff hostage for more than a
year.
Rule: Since the militant students were private persons, the state of Iran did not incur
responsibility for the seizing of the embassy, but it did incur responsibility for a number of
related circumstances:
- The Iranian authorities had been under an obligation, derived from diplomatic law, to
provide protection to the embassy, but were nowhere to be found when the seizing
occurred and undertook no steps to bring the situation to a speedy end (see para 61
and 68).
- Iran’s leader at the time applauded the hostage-taking as a useful way of exercising
pressure on the USA and decided to perpetuate it (see para 73 and 74).
The ICJ argued that because of this, the acts of private citizens transformed into acts of
the state.
It is not possible for states to escape state responsibility by ‘outsourcing’ government
activities to private actors. Theoretically, the division between public and private acts is
fluid, but a state will still be held responsible if a person or group of persons is acting ‘on
the instructions of, or under the direction of’ the state. This may cover the activities of
state companies, but also irregular armed bands and private military companies or
mercenaries. The main intellectual problem here is to determine the precise standard for
determining the degree of state involvement.
→ Nicaragua v. USA
Facts: The United States were accused of using military force against Nicaragua and
intervening in Nicaragua’s internal affairs through supporting Contra guerrillas in their
war against the Nicaraguan government and by mining Nicaragua’s harbours.
Rule: The ICJ ruled that the acts of the Contra guerrillas were not attributable to the
United States as it could not be proved that the United States had effective control over
the Contras (see para 115).
→ Prosecutor v. Dusko Tadic 15 July 1999
The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia
(ICTY) applied a less strict test in its decision in this case. The ICTY concluded that an
overall control by a state over a military or paramilitary group was enough to attribute
their acts to the state. In this case, however, the question was not one of state
responsibility (see para 137).
When is a state not responsible?
Circumstances precluding wrongfulness
In domestic law there may be circumstances which help to justify behaviour that would
otherwise be illegal, and international law, too, knows a number of circumstances which
can be invoked by a state to justify behaviour that would otherwise amount to a wrongful
ac and thus give rise to state responsibility. These circumstances are assembled under
