Probleem 3 – Responsible for what or whom?
Leerdoelen:
Leerdoel 1: How is the responsibility of states regulated in International law? Or under which conditions can a
state be held accountable under the ILC articles on responsibility of states for Internationally Wrongful
Cunduct?
Leerdoel 2: Which circumstances preclude the wrongfulness of an act/omission? Or what are the exceptions for
state responsibility?
Boek 1: International Law, hoofdstuk 7
Leerdoel 1: How is the responsibility of states regulated in International law? Or under which conditions can a
state be held accountable under the ILC articles on responsibility of states for Internationally Wrongful
Cunduct?
Rules of secondary nature: determine the consequences of violating the primary rules.
Articles on Responsibility of States for Internationally Wrongful Acts prepared by the ILC.
State responsibility consists of two elements:
Conduct must be a breach of an international obligation.
Article 12 ILC: 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.
Article 3 ILC: a state cannot justify a breach of its international legal obligations by
invoking(=aanroepen) its national laws and a state must also comply with international obligations
even if it requires breaching its national laws.
That conduct must be attributable to a state. (articles 4-11 chapter III ILC)
Tehran Hostages case: illustrates that both acts and omissions(=weglating) can constitute
wrongful conduct.
Fundamental principle ILC: states are only responsible for their own acts and not for those of
other states or private individuals.
Due diligence principle: a state is obliged to seek to prevent all activities that occur in its own
territory from causing significant damage in another state.
Article 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. This is the
attribution(=naamsvermelding) for acts performed by the state and its organs.
Organ: any person or entity with an official status in the internal law of the state.
Attribution for acts performed by organs exercising governmental authority: article 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(=uitbesteden) functions that are properly governmental.
Act of governmental authority: the content of the powers granted as well as the way they
are conferred(=verleend) to 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.
Requirement for attribution under article 5: the entity is empowered by the internal laws of
the state of conduct to the governmental authority.
Attribution for acts by organs on loan(=lening) from another state: article 6 ILC: acts of the loaned
organ are attributed to the receiving state. This 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.
Responsibility for acts ultra vires: article 7 ILC: a state remains responsible for conduct performed
by its organs and officials even if the organ or official stated contrary to orders and instructions or
in excess of authority: ultra vires.
Attribution for acts performed by private individuals: article 8 ILC: a state is only responsible for
the conduct of a person or a group of persons if they are in fact acting on the instructions of, or
under the direction or control of, that state in carrying out the conduct. Two situations:
The individuals must be acting on the instructions or orders of the state.
The individuals must be acting under the direction or control of the state.
, Nicaragua case: the acts of the contras could not be attributed to the United States because it
would require that the US had effective control of the military or paramilitary operations in
the course of which the alleged(=vermeende) violations were committed.
Attribution requires that effective control can be established in respect of each operation in
which the alleged violations occurred, not generally in respect of the overall actions taken by
the persons or groups of persons having committed the violations.
Acts of an insurrectional(=opstandig) movement are not attributable to a state.
Article 10 ILC states that if that movement succeeds in assuming power and establishes itself
as the new government of the state, or manages to form a new state in part of the territory
of the pre-existing state, the state will be responsible for the acts of the movement.
Responsibility for acts subsequently acknowledged and adopted: article 11 ILC: a state may
become responsible for conduct that was not attributable to it when it was committed if it
subsequently acknowledges the conduct and adopts it as its own. It must show willingness to
assume responsibility for the acts in question.
Mere statements of support or sympathy or general acknowledgement of factual
circumstances are not sufficient.
Tehran Hostages: the acts of the Iranian government subsequent to the storming and
occupation of the US embassy by private Iranian citizens meant that the conduct became acts
of the Iranian state.
Not only did the Iranian government approve of the occupation of the embassy and the
taking of the hostages, it decided to perpetuate(=vereeuwigen) and use it to pressure the
US government.
State responsibility in relation to acts of other states (chapter IV ILC articles):
Article 16 ILC: a state will be internationally responsible for aiding or assisting another state in the
commission of an international wrongful act if:
The aid or assistance is given with knowledge of the circumstances of the international wrongful
act. If a state is unaware of the circumstances it will not be responsible.
The act would be internationally wrongful if it was committed by the aiding or assisting state.
Consequences of wrongful conduct: the two most important (articles 30-31 ILC):
The obligations to cease(=ophouden) the wrongful conduct.
Article 30(a) ILC: the state must cease its act if it is continuing.
Article 30(b) ILC: the responsible state may be obliged to offer appropriate assurances(=garanties)
and guarantees of non-repetition if required by the circumstances.
The obligations to make reparations.
Article 31 ILC: the responsible state must make full reparation for the injury caused by the
internationally wrongful act.
PCIJ: the breach of an engagement involves an obligation to make reparation in an adequate form
and that reparation is the indispensable(=onmisbaar) complement(=aanvullen) to a failure to
apply a convention.
Purpose: to as far as possible, wipe out all the consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been committed.
ICJ: compensation should not have a punitive or exemplary(=voorbeeldig) character.
Injury: not just material but also moral damage.
Material damage: losses measurable in financial terms.
Moral damage: more intangible(=ontastbaar) losses, including pain and suffering.
Forms of reparation: articles 34-38 ILC. Compensation is the most relevant means of reparation
and a court or tribunal with jurisdiction over a case usually awards compensation for the damage
suffered.
Obligations to third states following breaches of jus cogens: articles 40-41 ILC: all states must
cooperate to bring to an end through lawful means any serious breach of a jus cogens norm, must
refrain from recognizing as lawful a situation created by a serious breach of a peremptory norm and
not render aid or assistance in maintaining that situation.
Invoking the international responsibility of another state:
Article 42 ILC: it is the state whose rights have been violated or denied: the injured state.
Article 46 ILC: if the rights of more than one state have been violated, there may be more than one
injured state.
Leerdoelen:
Leerdoel 1: How is the responsibility of states regulated in International law? Or under which conditions can a
state be held accountable under the ILC articles on responsibility of states for Internationally Wrongful
Cunduct?
Leerdoel 2: Which circumstances preclude the wrongfulness of an act/omission? Or what are the exceptions for
state responsibility?
Boek 1: International Law, hoofdstuk 7
Leerdoel 1: How is the responsibility of states regulated in International law? Or under which conditions can a
state be held accountable under the ILC articles on responsibility of states for Internationally Wrongful
Cunduct?
Rules of secondary nature: determine the consequences of violating the primary rules.
Articles on Responsibility of States for Internationally Wrongful Acts prepared by the ILC.
State responsibility consists of two elements:
Conduct must be a breach of an international obligation.
Article 12 ILC: 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.
Article 3 ILC: a state cannot justify a breach of its international legal obligations by
invoking(=aanroepen) its national laws and a state must also comply with international obligations
even if it requires breaching its national laws.
That conduct must be attributable to a state. (articles 4-11 chapter III ILC)
Tehran Hostages case: illustrates that both acts and omissions(=weglating) can constitute
wrongful conduct.
Fundamental principle ILC: states are only responsible for their own acts and not for those of
other states or private individuals.
Due diligence principle: a state is obliged to seek to prevent all activities that occur in its own
territory from causing significant damage in another state.
Article 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. This is the
attribution(=naamsvermelding) for acts performed by the state and its organs.
Organ: any person or entity with an official status in the internal law of the state.
Attribution for acts performed by organs exercising governmental authority: article 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(=uitbesteden) functions that are properly governmental.
Act of governmental authority: the content of the powers granted as well as the way they
are conferred(=verleend) to 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.
Requirement for attribution under article 5: the entity is empowered by the internal laws of
the state of conduct to the governmental authority.
Attribution for acts by organs on loan(=lening) from another state: article 6 ILC: acts of the loaned
organ are attributed to the receiving state. This 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.
Responsibility for acts ultra vires: article 7 ILC: a state remains responsible for conduct performed
by its organs and officials even if the organ or official stated contrary to orders and instructions or
in excess of authority: ultra vires.
Attribution for acts performed by private individuals: article 8 ILC: a state is only responsible for
the conduct of a person or a group of persons if they are in fact acting on the instructions of, or
under the direction or control of, that state in carrying out the conduct. Two situations:
The individuals must be acting on the instructions or orders of the state.
The individuals must be acting under the direction or control of the state.
, Nicaragua case: the acts of the contras could not be attributed to the United States because it
would require that the US had effective control of the military or paramilitary operations in
the course of which the alleged(=vermeende) violations were committed.
Attribution requires that effective control can be established in respect of each operation in
which the alleged violations occurred, not generally in respect of the overall actions taken by
the persons or groups of persons having committed the violations.
Acts of an insurrectional(=opstandig) movement are not attributable to a state.
Article 10 ILC states that if that movement succeeds in assuming power and establishes itself
as the new government of the state, or manages to form a new state in part of the territory
of the pre-existing state, the state will be responsible for the acts of the movement.
Responsibility for acts subsequently acknowledged and adopted: article 11 ILC: a state may
become responsible for conduct that was not attributable to it when it was committed if it
subsequently acknowledges the conduct and adopts it as its own. It must show willingness to
assume responsibility for the acts in question.
Mere statements of support or sympathy or general acknowledgement of factual
circumstances are not sufficient.
Tehran Hostages: the acts of the Iranian government subsequent to the storming and
occupation of the US embassy by private Iranian citizens meant that the conduct became acts
of the Iranian state.
Not only did the Iranian government approve of the occupation of the embassy and the
taking of the hostages, it decided to perpetuate(=vereeuwigen) and use it to pressure the
US government.
State responsibility in relation to acts of other states (chapter IV ILC articles):
Article 16 ILC: a state will be internationally responsible for aiding or assisting another state in the
commission of an international wrongful act if:
The aid or assistance is given with knowledge of the circumstances of the international wrongful
act. If a state is unaware of the circumstances it will not be responsible.
The act would be internationally wrongful if it was committed by the aiding or assisting state.
Consequences of wrongful conduct: the two most important (articles 30-31 ILC):
The obligations to cease(=ophouden) the wrongful conduct.
Article 30(a) ILC: the state must cease its act if it is continuing.
Article 30(b) ILC: the responsible state may be obliged to offer appropriate assurances(=garanties)
and guarantees of non-repetition if required by the circumstances.
The obligations to make reparations.
Article 31 ILC: the responsible state must make full reparation for the injury caused by the
internationally wrongful act.
PCIJ: the breach of an engagement involves an obligation to make reparation in an adequate form
and that reparation is the indispensable(=onmisbaar) complement(=aanvullen) to a failure to
apply a convention.
Purpose: to as far as possible, wipe out all the consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been committed.
ICJ: compensation should not have a punitive or exemplary(=voorbeeldig) character.
Injury: not just material but also moral damage.
Material damage: losses measurable in financial terms.
Moral damage: more intangible(=ontastbaar) losses, including pain and suffering.
Forms of reparation: articles 34-38 ILC. Compensation is the most relevant means of reparation
and a court or tribunal with jurisdiction over a case usually awards compensation for the damage
suffered.
Obligations to third states following breaches of jus cogens: articles 40-41 ILC: all states must
cooperate to bring to an end through lawful means any serious breach of a jus cogens norm, must
refrain from recognizing as lawful a situation created by a serious breach of a peremptory norm and
not render aid or assistance in maintaining that situation.
Invoking the international responsibility of another state:
Article 42 ILC: it is the state whose rights have been violated or denied: the injured state.
Article 46 ILC: if the rights of more than one state have been violated, there may be more than one
injured state.
