Weblecture 4 – Introduction to International and European Union Law
The use of force and the international responsibility of States for wrongful conduct:
Responsibility, what does it mean?
Domestic and transnational legal systems have different types of responsibility.
Liability.
Accountability.
Tortious.
Contractual.
Criminal.
International law has its own general rules to deal with branches of binding international
obligations -> yet possibility of different regimes (think of EU Law!).
Understanding State responsibility:
Where can we find the rules on SR?
Customary international law.
ILC Articles (or ARSIWA of ASR), 2001: adopted by UN General Assembly (A/RES/56/83) – a set of
rules mostly reflecting customary international law.
Secondary rules (describe how primary rules are created, interpreted and enforces: rules about
rules).
Notion of international wrongful acts (IWA):
International wrongful acts:
Articles 1,2 and 12 ASR: states responsible for an internationally wrongful act = two foundational
principles and three elements:
An act or an omission that.
Is attributable to the State (subjective element).
That constitutes a breach of an international obligation (objective element). (In the absence
of any valid justification of non-performance).
Note: what constitutes IWA = determined in terms of international law; not by domestic law
(article 3 ASR), thus a State cannot justify a breach of international law by invoking domestic law.
Attribution to the State conduct of organs of the State:
The state is an abstract entity: its acts are always carries out by organs (representatives).
General rule: State will be responsible for behavior of its organs (art. 4 Ars) including for conduct of
organs placed at the disposal of a state by another state (art. 6 Ars).
Conduct which is exercised in excess or contravention of instructions (art. 7 Ars so-called acts ultra
vires).
Who is a state organ? Article 4 ASR -> no distinction as to which organs breaches an obligation.
General rule: States will NOT be responsible for the conduct of private individuals.
Unless:
Private individuals performing public functions conferred upon them (art. 5 ASR).
Private individuals performing acts – under state direction or control (Nicaragua case, ICJ)
(art. 8 ASR) - > control over the conduct(s).
Private individuals performing acts – (tacitly) adopted by the State (Tehran Hostages case, ICJ)
(art. 11 ASR).
Private individuals performing acts – under state’s direction or control (Nicaragua ICJ) (art. 8 ASR):
Background: US had allegedly provided various forms of support [financing, organizing, training,
supplying and equipping] of the Nicaraguan contras, who carried out attacks in Nicaragua.
Facts: Nicaragua claimed that the US was responsible for alleged breach of obligation to refrain from
State’s internal affairs & prohibition on the use of force.
Legal question before ICJ: can the US be held responsible for the acts of the Nicaraguan contras?
[attributable to the US]
Judgement:
Decisive test = effective control of the operations (ICJ later confirmed in Genocide case ICJ).
US activities not amounting to effective control; Nicaraguan contras’ acts could have been
committed without control of the US – thus, the contras’ acts cannot be attributed to the US. BUT:
US incurring responsibility for their own activities – obvious breach of non-intervention principle
ICTY Tadic case (overall control).
Breach of an international obligation:
The use of force and the international responsibility of States for wrongful conduct:
Responsibility, what does it mean?
Domestic and transnational legal systems have different types of responsibility.
Liability.
Accountability.
Tortious.
Contractual.
Criminal.
International law has its own general rules to deal with branches of binding international
obligations -> yet possibility of different regimes (think of EU Law!).
Understanding State responsibility:
Where can we find the rules on SR?
Customary international law.
ILC Articles (or ARSIWA of ASR), 2001: adopted by UN General Assembly (A/RES/56/83) – a set of
rules mostly reflecting customary international law.
Secondary rules (describe how primary rules are created, interpreted and enforces: rules about
rules).
Notion of international wrongful acts (IWA):
International wrongful acts:
Articles 1,2 and 12 ASR: states responsible for an internationally wrongful act = two foundational
principles and three elements:
An act or an omission that.
Is attributable to the State (subjective element).
That constitutes a breach of an international obligation (objective element). (In the absence
of any valid justification of non-performance).
Note: what constitutes IWA = determined in terms of international law; not by domestic law
(article 3 ASR), thus a State cannot justify a breach of international law by invoking domestic law.
Attribution to the State conduct of organs of the State:
The state is an abstract entity: its acts are always carries out by organs (representatives).
General rule: State will be responsible for behavior of its organs (art. 4 Ars) including for conduct of
organs placed at the disposal of a state by another state (art. 6 Ars).
Conduct which is exercised in excess or contravention of instructions (art. 7 Ars so-called acts ultra
vires).
Who is a state organ? Article 4 ASR -> no distinction as to which organs breaches an obligation.
General rule: States will NOT be responsible for the conduct of private individuals.
Unless:
Private individuals performing public functions conferred upon them (art. 5 ASR).
Private individuals performing acts – under state direction or control (Nicaragua case, ICJ)
(art. 8 ASR) - > control over the conduct(s).
Private individuals performing acts – (tacitly) adopted by the State (Tehran Hostages case, ICJ)
(art. 11 ASR).
Private individuals performing acts – under state’s direction or control (Nicaragua ICJ) (art. 8 ASR):
Background: US had allegedly provided various forms of support [financing, organizing, training,
supplying and equipping] of the Nicaraguan contras, who carried out attacks in Nicaragua.
Facts: Nicaragua claimed that the US was responsible for alleged breach of obligation to refrain from
State’s internal affairs & prohibition on the use of force.
Legal question before ICJ: can the US be held responsible for the acts of the Nicaraguan contras?
[attributable to the US]
Judgement:
Decisive test = effective control of the operations (ICJ later confirmed in Genocide case ICJ).
US activities not amounting to effective control; Nicaraguan contras’ acts could have been
committed without control of the US – thus, the contras’ acts cannot be attributed to the US. BUT:
US incurring responsibility for their own activities – obvious breach of non-intervention principle
ICTY Tadic case (overall control).
Breach of an international obligation:
