Uitwerkingen Problemen 1-8 PIL
MICK VAN WASBEEK, 485081MW
Probleem 1
State responsibility
A state can only be held responsible for an International Wrongful Act (IWA).
An IWA consists of:
• An act or omission that is attributable to the state;
• That constitutes a breach of an international obligation;
• In the absence of any valid justi cation.
When a state is no party in an international obligation, it cannot be held responsible for an IWA
since an essential part of the IWA is the breach of an International obligation.
Attributable
The general rule is that a state is responsible for its organs and o cials including:
• Conduct of organs placed at disposal of a state by another state;
• Conduct exercised in exces or contravention of instruction (Ultra vires acts) (Youmans-case)
States are responsible for:
• Private individuals performing acts under states direction/control (Nicaragua case);
• Private individuals performing acts tacitly adopted by the state or failure to prevent violations
of international obligations (Teheran hostages case);
States are not responsible for what public o cials do in their spare time. That changes whenever
they do so in their public clothing or other signs of public authority.
State responsibility is determined on the basis of international law, thus states cannot hide behind
their domestic laws or constitutionally independent organs within their states (i.e. a court)
Nicaraqua case: here the e ective control test was introduced. “Could the acts have been
committed without the control of the state?” If not, it’s attributable!
—> BUT, in this case the US was responsible for for its own activities, namely the breach of the
non-intervention principle.
ICTYTadic case: Overall control test, however this test could stretch out too much, resulting in
almost in nite accountability for states.
Article 10 ASR: new developing states can also be responsible for acts when they formed a state
afterwards.
Circumstances precluding wrongfulness
In articles 20-25 of the state responsibility articles is stated when there’s no wrongfulness:
• Consent from injured state;
• Self-defense;
• Counter-measures;
• Force-majeur, beyond state control making obligation by the state impossible;
• Distress, meaning the possibility of two scenario’s but the injuring one prevents sacri ces;
• Necessity, justi es behavior when absolutely necessary to protect vital state interests which
needs to be relatively harmless to the injured state.
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, Consequences of state responsibility
The state that has injured another state should:
- Cease the unlawful act; and
- Assure non-repetition of the act.
Reparations for injury ex art. 34 ASR
• Restitution of the situation as if before the injury of the IWA; otherwise,
• Compensation of actual losses caused by the IWA; or,
• Satisfaction, i.e. acknowledging of an IWA, or a formal apologie.
When the injuring state doesn’t want to give reparations to the injured state can take
countermeasures:
• Retorsion: unfriendly acts like breaking diplomatic bonds;
• Reprisal: taking countermeasures that could be IWA’s, but they must meet the need of
preconditions and limitations in the ASR. The use of force is never allowed.
Law of the treaties (web lectures)
Treaties are rules concerning rules. There are two sorts of treaties:
• Primary treaties: concerning rules laid down
• Secondary treaties: concerning the application of primary treaty law
What is a treaty
Art. 2.1 VCLT says it is an international agreement between states in written form and governed
by international law whether embodied in a single instrument and whatever its particular
designation.
• When an agreement is not written, it just doesn’t fall under the VCLT;
Law of treaties is based on two fundamental principles:
• Free consent: to maintain state sovereignty (lotus principle)
• Freedom is not unlimited : Pacta sunt servanda, means that obligations should be honored.
• Gabcikovo-Nagymaros case: free to join a treaty, not free to not oblige to them.
Conclusions of treaties
First there will be a draft, then an adoption text and at the end a signature or rati cation. Two
tings can happen:
1. The treaty is signed, therefore giving a consent to be bound by the treaty, the signing states
will then be bound by the treaty; or
2. A addition rati cation is needed after signing by a national institution, like the parliament.
After rati cation, then the treaty is binding the states.
So signature can function either as binding or as an intention to be bound.
Interpretation of treaties
• Textual approach —> what do terms mean? Example: ‘sustainable’
• Historical approach —> older treaties can sometimes be out of date
• Teleological approach —> Looks at the object and purpose of the treaty, danger here is that
too much can be derived from the original treaty.
There is a mix possible between di erent interpretation techniques (31 VCLT): Tyler case and
LaGrand case
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, Armed activities on the territory of the Congo (DRC v. Rwanda case
Rwanda made a reservation that was invalid because the Genocide convention contains norms
of jus cogens. Also Rwanda’s reservation is incompatible with the object and purpose of the
convention, since it excludes Rwanda from monitoring of genocide, whereas the purpose of the
convention is the elimination of genocide.
However the ICJ ruled that the reservation was valid, because the reservation did not seek to
a ect acts of genocide themselves, but was meant to exclude a particular method of settling a
dispute relating tot the interpretation, application and ful llment of the convention, and this was
not to be regarded as incompatible with the object and purpose of the convention.
Treaty termination
Termination by mutual consent or in conformity with the treaty provisions is possible ex art. 54
VCLT.
Unilateral termination is when a party decides to terminate on itself:
Material breach - 60 VCLT
A material breach is a breach concerning a provision essential to the accomplishment of the
object and purpose of the treaty (gabcikovo-Nagymaros case).
Supervening impossibility of performance - 61 VCLT
When the party cannot be held responsible on itself for the breach. For instance natural
occurrences like oods, river running dry or blizzards). In practice it can be hard to distinguish
man made occurrences from not man made ones.
Fundamental change of circumstances - 62 VCLT
The ratio behind this is that the treaties must be advantageous. It consists of three elements:
1. Change is unforseen;
2. Circusstances were essential basis for parties’ consent;
3. Change radically transforms the extent of obligations still to be performed.
In the Fisheries case and Gabcikovo-Nagymaros the ICJ accepted these grounds.
Case Law - Problem 1
Teheran hostages case
In 1979 the US embassy was overrun by Iranian civilians after the US had provided shelter to the
so called Sha, The Iranians held te sta of the embassy hostage while the Iranian government did
not really do much about the situation.
The question in case was if Iran act in violation of its International obligations in tolerating
encoring en failing to protect and punish the conduct by the militant group. The obligations
concerned are: Vienna convention about diplomatic relations, prevention and protection against
internationally protected persons etc.
The court ruled that Iran had violated its obligations towards the US under international law. Also
Iran was ordered to immediately release the hostages, restore the embassy premises and to make
reparations for the injury caused to the US.
• In p58 the court stated that the acts of the militants is not attributable to Iran, however Iran
not acting up against this event and their leader ayatollah making positive statements about
the hostage takers is seen as an omission of the obligation to protect embassy personal. He
even congratulated the hostage takers via the phone.
• P61 concludes that Iran is responsible for not acting up against the attacks under the Vienna
convention obligations regarding diplomatic relations.
• P87 concludes that Iran did not react proportionality to the actions of the US with the
hostage taking, so a justi cation is not t here.
• 61, 68, 73, 74.
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