Probleem 5
Bronnen:
- Hendriksen – International Law – Chapter 7
- Nicaragua case
- Tehran hostages case
- Tadic case
- Genocide case
1. When is a state responsible?
The basic principles of state responsibility
The fundamental principle of state responsibility is reflected in art. 1 ILC (international liability convention, also
Responsibility of States for Internationally Wrongful Acts): every internationally wrongful act of a state entails the
international responsibility of that state. Art. 2 ILC gives two elements of responsibility:
1) Conduct must be a breach of an international obligation
2) That conduct must be attributable to a state
In the Tehran Hostages Case, the Iranian citizens overran US diplomatic installations in Iran. The court had to
decide how far, legally, the acts in question may be regarded as imputable to the Iranian State and secondly, if the
acts are compatible with the obligations of Iran. The court ruled that both act and negligence can be seen as
wrongful conduct. The court found that Iran had breached its international obligations under the Vienna
Convention on Diplomatic Relations by failing to protect the US installations.
In international law, there are no fixed standards of liability, but depends on the primary legal source (art. 12 ILC). There is
also no distinction between criminal and civil liability. Another important principle is reflected in art. 3 ILC, a state can’t
justify a breach of its international legal obligations by invoking its national laws and a state must beach its national laws
to comply with international obligations.
Attribution of conduct
There are eight ways to attribute conduct to states:
1. Attribution for acts performed by the state and its organs (art. 4 ICL): all conduct of state organs is considered an
act of a state. All three branches of government may implicate the international responsibility of the state. The
term ‘organ’ is interpretated broadly.
In the Genocide case, the Court had to decide if the Federal Yugoslavian government in Belgrade was
internationally responsible for the 1995 Srebrenica massacres in Bosnia done by local Bosnian Serb forces
who were not officially state forces. The Court decided that the forces were organs of the Federal Yugoslavian
state only if they acted in full dependence on the State, of which they were ultimately merely the instrument.
The court decided that the forces were not state organs. It should be exceptional to equate persons or
entities with sate organs when they do not have that status under internal law.
2. Attribution for acts performed by organs exercising governmental authority (art. 5 ILC): individuals who
exercises authority which is normally done by the state. To determine if an act can be considered as a
‘governmental authority’ the following criteria can give some assistance:
a. The content of the power granted
b. The way they are conferred on an entity
c. The purpose
d. The extent to which the entity is accountable to government for their exercises
3. Attribution for acts by organs ‘on loan’ from another state (art. 6 ILC): one state ‘loans’ one of its organs to
another state. The acts of the organ are attributed to the receiving state, when it is actually under authority abs
does not retain its autonomy (Genocide Case).
4. Responsibility for acts ultra vires (art. 7 ILC): the state remains responsible when an organ or official acts in
contrary to orders and instructions.
5. Attribution for acts performed by private individuals (art. 8 ILC): The state is responsible for an acting private
individual when:
a. The individual acts under the direction or control of the state
Bronnen:
- Hendriksen – International Law – Chapter 7
- Nicaragua case
- Tehran hostages case
- Tadic case
- Genocide case
1. When is a state responsible?
The basic principles of state responsibility
The fundamental principle of state responsibility is reflected in art. 1 ILC (international liability convention, also
Responsibility of States for Internationally Wrongful Acts): every internationally wrongful act of a state entails the
international responsibility of that state. Art. 2 ILC gives two elements of responsibility:
1) Conduct must be a breach of an international obligation
2) That conduct must be attributable to a state
In the Tehran Hostages Case, the Iranian citizens overran US diplomatic installations in Iran. The court had to
decide how far, legally, the acts in question may be regarded as imputable to the Iranian State and secondly, if the
acts are compatible with the obligations of Iran. The court ruled that both act and negligence can be seen as
wrongful conduct. The court found that Iran had breached its international obligations under the Vienna
Convention on Diplomatic Relations by failing to protect the US installations.
In international law, there are no fixed standards of liability, but depends on the primary legal source (art. 12 ILC). There is
also no distinction between criminal and civil liability. Another important principle is reflected in art. 3 ILC, a state can’t
justify a breach of its international legal obligations by invoking its national laws and a state must beach its national laws
to comply with international obligations.
Attribution of conduct
There are eight ways to attribute conduct to states:
1. Attribution for acts performed by the state and its organs (art. 4 ICL): all conduct of state organs is considered an
act of a state. All three branches of government may implicate the international responsibility of the state. The
term ‘organ’ is interpretated broadly.
In the Genocide case, the Court had to decide if the Federal Yugoslavian government in Belgrade was
internationally responsible for the 1995 Srebrenica massacres in Bosnia done by local Bosnian Serb forces
who were not officially state forces. The Court decided that the forces were organs of the Federal Yugoslavian
state only if they acted in full dependence on the State, of which they were ultimately merely the instrument.
The court decided that the forces were not state organs. It should be exceptional to equate persons or
entities with sate organs when they do not have that status under internal law.
2. Attribution for acts performed by organs exercising governmental authority (art. 5 ILC): individuals who
exercises authority which is normally done by the state. To determine if an act can be considered as a
‘governmental authority’ the following criteria can give some assistance:
a. The content of the power granted
b. The way they are conferred on an entity
c. The purpose
d. The extent to which the entity is accountable to government for their exercises
3. Attribution for acts by organs ‘on loan’ from another state (art. 6 ILC): one state ‘loans’ one of its organs to
another state. The acts of the organ are attributed to the receiving state, when it is actually under authority abs
does not retain its autonomy (Genocide Case).
4. Responsibility for acts ultra vires (art. 7 ILC): the state remains responsible when an organ or official acts in
contrary to orders and instructions.
5. Attribution for acts performed by private individuals (art. 8 ILC): The state is responsible for an acting private
individual when:
a. The individual acts under the direction or control of the state
