Weblecture 4

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: