DEELTIJDCOLLEGE 1 – PIL
STATE RESPONSIBILITY AND THE LAW OF TREATIES.
STATE RESPONSIBILITY:
Responsibility: necessary corollary of a right. The basic principle of state responsibility is that it is something
that comes together with a right. State have a right under international law, this means that states have a
responsibilities.
Where can we find the rules on SR?
We have customary international law on state responsibility. ILS articles -> ARS: this is a secondary rule. We
need to make a distinction between primary rules and secondary rules:
Primary rules: substantive rules that tell as how to behave. (for e.g. you can’t kill anyone)
Secondary rules: this is about how rules are made. Rules about rules.
Responsibility is mostly about the second aspect: the rules about rules. It does not really tell us how to behave
but it tells us how you’ll be bound by a international law, what happens if you don’t observe the primary rules
etc. The articles on state responsibility are adopted by the UN General Assembly. It is not a binding treaty but
it is a document that is almost always referred to when we talk about state responsibility, this is because the
content of the document comes from customary international law.
If states are responsible for international wrongful acts, how do we determine whether there has been an
‘internationally wrongful act (IWA)’?
Art. 1 and 12 ASR: state responsible for an internationally wrongful act:
Art. 2 ASR: IWA= three cumulative requirements:
1. There has to be an act or omission (a violation can also mean not doing something);
2. That act needs to be attributable to the state; the state needs to be the owner of that act.
3. There has to be a breach of international legal obligation -> primary rule. (IWA).
An omission can only be a violation of international law when there is a duty that they should have acted.
State responsibility is determined under international law, and exclusively under international law -> not under
domestic law art. 3 ASR.
Example: just because the United states does something which is a crime in Dutch national law, that act or
omission of the United States would have to be a violation of international law, it does not matter if it is a
violation of domestic law of any state.
Act or omission:
= usually, fairly easy to determine although there are more challenges with omissions.
A prominent example of omission is the Tehran Hostages case.
Attribution to the state:
Controversial aspect (most case law concerns attribution).
General rule: if the actions/ommisions is undertaken:
By state organs, state agents, state officials acting in their official capacity then it is attributable to
the state. Official capacity = lawful conduct. When is a conduct undertaken in an official capacity and
when is a conduct undertaken in a private capacity? Official capacity does not necessarily mean that it
is a lawful act.
By private individuals then it is not attributable to the state BUT there is an exception: this is
codified in ASR part one chapter II – reflecting earlier ICJ cases of Theran Hostages and Nicaragua:
1
, - Private individuals performing public duties – officially
- Private individuals performing public duties – de facto, because for e.g. state functions absent or
not working (failed states)
- Private individuals performing acts – under state control -> Nicaragua case.
- Private individuals performing acts – (tacitly) adopted by state
A closer look at the Nicaragua case:
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:
- Case between Nicaragua and the United States.
- Nicaragua claimed US responsible for alleged breach of obligation to refrain from intervening in
another State’s internal affairs & prohibition on the use of force.
Legal question:
Can the US be held responsible for the acts of the Nicaraguan contras? Is it attributable to the US.
Judgement:
For the acts of rebel groups to be attributable to the US the US must have had an effective control over the
group -> Decisive test= effective control, the ICJ later confirmed in Genocide case. So, ‘under state control’
means under effective control of the state.
US activities did not amount to effective control: Nicaraguan contras acts would 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.
We are not trying to hold the US responsible for the aiding of the contras, we are trying to hold the US
responsible for the crimes that the contras committed.
A closer look at the Tehran Hostages case:
Facts:
4 November 1979: Iranian students storm the US embassy in Tehran. All diplomatic personnel and other
persons present were seized as hostages.
What happened then:
Phase 1: no attempts were made by Iranian State to clear the diplomatic premises.
Phase 2: Iranian minister for Foreign Affairs states that ‘the students enjoy the endorsement and support of the
government, because America herself is responsible for this incident’. More of such statements were issued by
various state organs.
2
STATE RESPONSIBILITY AND THE LAW OF TREATIES.
STATE RESPONSIBILITY:
Responsibility: necessary corollary of a right. The basic principle of state responsibility is that it is something
that comes together with a right. State have a right under international law, this means that states have a
responsibilities.
Where can we find the rules on SR?
We have customary international law on state responsibility. ILS articles -> ARS: this is a secondary rule. We
need to make a distinction between primary rules and secondary rules:
Primary rules: substantive rules that tell as how to behave. (for e.g. you can’t kill anyone)
Secondary rules: this is about how rules are made. Rules about rules.
Responsibility is mostly about the second aspect: the rules about rules. It does not really tell us how to behave
but it tells us how you’ll be bound by a international law, what happens if you don’t observe the primary rules
etc. The articles on state responsibility are adopted by the UN General Assembly. It is not a binding treaty but
it is a document that is almost always referred to when we talk about state responsibility, this is because the
content of the document comes from customary international law.
If states are responsible for international wrongful acts, how do we determine whether there has been an
‘internationally wrongful act (IWA)’?
Art. 1 and 12 ASR: state responsible for an internationally wrongful act:
Art. 2 ASR: IWA= three cumulative requirements:
1. There has to be an act or omission (a violation can also mean not doing something);
2. That act needs to be attributable to the state; the state needs to be the owner of that act.
3. There has to be a breach of international legal obligation -> primary rule. (IWA).
An omission can only be a violation of international law when there is a duty that they should have acted.
State responsibility is determined under international law, and exclusively under international law -> not under
domestic law art. 3 ASR.
Example: just because the United states does something which is a crime in Dutch national law, that act or
omission of the United States would have to be a violation of international law, it does not matter if it is a
violation of domestic law of any state.
Act or omission:
= usually, fairly easy to determine although there are more challenges with omissions.
A prominent example of omission is the Tehran Hostages case.
Attribution to the state:
Controversial aspect (most case law concerns attribution).
General rule: if the actions/ommisions is undertaken:
By state organs, state agents, state officials acting in their official capacity then it is attributable to
the state. Official capacity = lawful conduct. When is a conduct undertaken in an official capacity and
when is a conduct undertaken in a private capacity? Official capacity does not necessarily mean that it
is a lawful act.
By private individuals then it is not attributable to the state BUT there is an exception: this is
codified in ASR part one chapter II – reflecting earlier ICJ cases of Theran Hostages and Nicaragua:
1
, - Private individuals performing public duties – officially
- Private individuals performing public duties – de facto, because for e.g. state functions absent or
not working (failed states)
- Private individuals performing acts – under state control -> Nicaragua case.
- Private individuals performing acts – (tacitly) adopted by state
A closer look at the Nicaragua case:
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:
- Case between Nicaragua and the United States.
- Nicaragua claimed US responsible for alleged breach of obligation to refrain from intervening in
another State’s internal affairs & prohibition on the use of force.
Legal question:
Can the US be held responsible for the acts of the Nicaraguan contras? Is it attributable to the US.
Judgement:
For the acts of rebel groups to be attributable to the US the US must have had an effective control over the
group -> Decisive test= effective control, the ICJ later confirmed in Genocide case. So, ‘under state control’
means under effective control of the state.
US activities did not amount to effective control: Nicaraguan contras acts would 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.
We are not trying to hold the US responsible for the aiding of the contras, we are trying to hold the US
responsible for the crimes that the contras committed.
A closer look at the Tehran Hostages case:
Facts:
4 November 1979: Iranian students storm the US embassy in Tehran. All diplomatic personnel and other
persons present were seized as hostages.
What happened then:
Phase 1: no attempts were made by Iranian State to clear the diplomatic premises.
Phase 2: Iranian minister for Foreign Affairs states that ‘the students enjoy the endorsement and support of the
government, because America herself is responsible for this incident’. More of such statements were issued by
various state organs.
2
