IEL – International Law – State Responsibility, week 4
Today’s Lecture
- Idea of state responsibility.
- How is it designed to hold states responsible for actions which violate international law.
- Principles under which state responsibility rests.
- Rules of attribution of conduct. – very tricky, a lot of overlaps, difficult to see which rules
of attribution to use in specific situations.
- Process of establishing state responsibility. – steps and order to see whether a state is
responsible and what happens next. These steps evolve to other parts of state responsibility
such as:
- Circumstances precluding wrongfullness. – year 2 focus.
Basic questions
- Under what conditions will one State be responsible to another State for breaching
international law? – primarily focus on this question in this lecture.
- What consequences legally follow when a State is established to be responsible for a breach
of international law?
- Who may establish that there is a breach of international law for which a State is
responsible?
The law on State responsibility
- A State is legally responsible for breaches of its international obligations, even when there
is no Court or tribunal with a jurisdiction to establish it.
- Different from how responsibility works in domestic legal systems. You’re not responsible
for anything unless proven in a court that you are. Process of establishing responsibility
goes through Court or some other institution.
- In international law it is different (Week 5). Court cases are extremely rare in international
law compared to numbers of disputes states have with one another. States avoid going to a
Court for certain reasons.
- Because of the above, state responsibility, then, is “objective” in a sense that it is triggered
solely by an internationally wrongful act, and not by a decision of a court. – International
wrongful act occurs, so a state has done something that is breach of obligation. International
responsibility comes immediately. You don’t need to wait for a court to make a judgement,
because there may not be a court to do so. You don’t need to do anything else. State
responsibility is objective and automatic.
- How does it work? – International law is a
horizontal system (Week 1), so it is based primarily
on the horizontal direct interaction between states.
So, state responsibility is no different in this regard.
There are 2 states (or more): one state committed a
wrongful act and an injured state that is somehow
hurt by this wrongful act. The latter does not
necessarily have to cause harm like damages of
property. So, there is no tort element to international
wrongful acts. It could just be when one state illegally deports a diplomat for instance:
Might count as an international wrongful act under diplomatic law, but no harm is done
since no damage is caused, no property destroyed, just a bad thing to do. Then, the injured
state claims the responsibility à claims for reparation. So, it asks the responsible state to
, either revoke the illegal action (retribution) or offer excuses for its illegal act. All of this
happens just between 2 states in this basic example. You don’t need anyone else; it is one
state against another. They directly talk to each other. Sometimes with certain violations of
international law, you might have multiple other states involved. However, for now we
focus on this simple situation.
Primary and secondary rules (distinction)
- Primary rules (found in a treaty or customary international law): establish concrete
obligations for States to do (or not do). – Rules learned so far, rules of jurisdiction for
example. Example: A state may claim territorial jurisdiction, upon its territory and anyone
residing in its territory, we know this is the basis. Found in CIL. There are certain
obligations that states have like not exercising their jurisdiction on the territory of another
state without consent. Most rules are on this category: they state rights and obligations for
states.
o States cannot violate human rights (HR).1 These are primarily obligations found in HR
treaties.
o States may not pollute. We find this in international environmental law.
- Secondary rules (rules on State responsibility): rules that specify whether or not a State is
responsible for breaching primary rules and what happens next. Rules about rules. We use
state responsibility rules, they’re secondary rules in a sense that they do not essentially
establish rights and obligations. They provide us rules to detect when primarily obligations
are violated, to see under what conditions that happens, and to establish what happens next!
For the rules of state responsibility to be triggered there must be a wrongfully international
act. But we only know when there is a wrongfully international act when we have secondary
rules at our disposal.
- PRIMARY RULES
o What obligations does a State have?
o We operate under these rules.
o We look at treaty law, customs, general principles of law.
o We try to establish whether a state violate its obligations.
- SECONDARY RULES
o When does a breach entail responsibility? Sometimes states may breach international
law but not be held responsible for that.
o What are the consequences of an internationally wrongful act?
- In the context of domestic law - There are primarily rules that establish rights, obligations,
prohibitions, and privileges for us private individuals (we have certain rights and
obligations under domestic law). But we also have secondary rules that allow us to detect
primarily rules. For example: X rules comes from the Parliament, so it is probably
obligatory. We use certain practice to detect what kind of obligations we have. Two level
system of law exists everywhere, not just international law.
The law on State responsibility: sources!
- UNGA Res 56/83 (2001): Articles on the Responsibility of States for Internationally
Wrongful Acts (ARSIWA) – basic source!
- Prepared by the International Law Commission (late 90s, early 00s).
1
HR – human rights
,- Approved by the General Assembly of UN in 2001 (entered into force).
- Not binding but are generally regarded as reflecting customary international law.
Almost no one doubts that ARSIWA is customary international law. The ICJ has confirmed
in multiple occasions that ARSIWA is CIL. Even more so, the ICJ used articles of state
responsibility even before they entered into force.
- ARSIWA provides secondary rules needed to assess alleged breaches of all kinds of
obligations under primary rules.
- Has several parts. Today we look at part 1 and part 2 of ARSIWA.
Basic rules on State responsibility
- Part 1 has 3 articles. – basic, fundamental rules of state responsibility.
- ARSIWA art. 1 “Every internationally wrongful act of a State entails the international
responsibility of that State” – No need for a court. You have an international wrongful act,
that entails state responsibility. Automatic triggering process.
- The term “international responsibility” relates to the new legal relations which arise under
international law by reason of the internationally wrongful act of a State. Injured state
revokes responsibility.
- International responsibility is a direct and immediate consequence of an internationally
wrongful act. Triggered automatically after international wrongful act occurs.
- ARSIWA art. 2 “There is an internationally wrongful act of a State when conduct
consisting of an action or omission:
o (a) is attributable to the State under international law; and
o (b) constitutes a breach of an international obligation of the State.”
- To see if there is an internationally wrongful act, we must make sure that it is an act of a
State and that this act violates a primary obligation of that State.
- 2 fundamental conditions.
- ARSIWA art. 3 “The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterization is not affected by the characterization
of the same act as lawful by internal law.”
- Domestic law can never be a ground for escaping international responsibility under
international law.
- Also art. 27 VCLT: “A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty. – same logic, idea.
Questions
- What does it mean that an action is triggerable to a state? How do we know that?
- How do we establish this attribution?
- How do we know when there is a breach of an international obligation?
Attribution
- A State is an abstract legal entity, which cannot act on its own.
- States must necessarily act through individual human beings.
- So how can we tell a difference between “just” an act of an individual and an act of a State?
– in both cases we see people constituting certain conduct.
- When is it just people doing constituting certain conduct for people?
- When does an act of individual human being(s) count as an act of State? – basic
question of attribution. This is where the rules of attribution work.
,- Attribution is a set of rules establishing the link between the persons actually
committing the wrongful act and the State.
- Part 2 is all about attribution.
We are trying to see when does an act of individual human being(s) count as an act of State.
ARSIWA Art. 4: State organs (most simple, when we think of state, we think of organs)
- The conduct of State organs is the conduct of that State.
- Legislative, executive, judicial, or any other function.
- Any position within the organisation of the State.
- Whatever level of governance. Doesn’t have to be top level of the government.
Government, Head of State, Parliament, could also be a municipality which is also an organ
of a state. Example: If the municipality of Groningen does something that violates
international obligations of the NL, that would count as an act of the state of the NL, not
just as an act of the municipality.
- Organ ≠ institution; for international law purposes it also includes individual state agents
when acting in official capacity Example: single individual policeman is an organ of the
state and if that one policeman decides to torture someone, that would be an act attributed
to a state, not just to that particular individual because there is an international obligation
under the convention against torture and under CIL that prohibits it.
- What is an organ?
o States can be organized in very different ways.
o Some states can have a very explicit structure with organs with very specific
authorities, competences, but some states don’t really have this.
o So, how do we know when something is an organ?
o Functional approach adopted by international law. Not a formal approach that you
always need to have a specification in the law of a particular organ but more of a
functional approach. You need to see what sort of competences that organ has, what it
normally does – does it perform any public functions? If so, how do other authorities
of that state treat that – do they treat it as authoritative or not, do they treat it as
representative of their government or not?
o “Organ” is not a very self-explanatory term as it may seem.
o The ICJ has dealt with the question of an organ in multiple cases. How do you really
define it?
, ARSIWA Art. 5: Entities exercising governmental authority
- Sometimes there is a situation where states delegate some of their functions to some other
actors. We would NOT call those organs actors of the state, art. 4 does not apply.
- Persons or entities which are not organs of the State but which are empowered by the law
of that State to exercise elements of the governmental authority. Those actions count as
actions of a state.
- Empowerment must be explicit.
- Usually applies to delegated powers (private prisons, private military companies, security
firms with police powers etc.) Example: Government of UK hires private military
companies to perform military operations in certain areas. It involves protection of some
facilities, shipments etc., It is cheaper to hire them, than spending governmental money on
the army. Same applies to private prisons (may violate international obligations such as
inhumane and degrading treatment, torture etc., - prohibited under CIL, so when there is
violation by private prisons, it is counted as a violation by the state where the violation
happened.)
- When you as a state delegate your powers to some private entities and when the latter
violate international obligations, the state is responsible still. Their actions would count as
the state’s actions, even though they are not organs of the state.
ARSIWA Art. 7: Excess of authority
- For example: There is this police force who beat people up to death and then the state is
held responsible for them, but the state says it did not command them to do that. The police
went above of what is allowed by the law, so the state is not responsible. Of course, the
police is responsible and will be punished, but the whole state is not. This excuse DOES
NOT apply in international law because of art. 7 ARSIWA.
- The conduct of an organ of the State is an act of the State even if it exceeds its authority or
contravenes instructions. No easy escape. Still attributed to the state.
- The rule exists to preclude the abuse of authority.
- Someone who is acting above what the law allows that person to act. Person is abusing his
official powers. It could be for personal gain (see police situation below) etc., However, it
doesn’t matter because the action of this person would be attributed to the state of which
the person works for.
- The excess of authority assumes that there is authority: official powers and functions.
Important distinction! But why? ↓
ARSIWA Art. 7: Excess of authority?
- 2 Examples:
o 1. A judge of The Hague Court of Appeals is on a vacation in Maldives. There, he
attacks a local citizen at a bar in a drunken brawl.
§ Is it an excess of authority? – No, because it doesn’t matter if he is a judge. He
is there on a vacation resting. He is just a private individual. He is not there
exercising his authority: powers as a judge.
o 2. During the weekend while not working, a police officer puts on his uniform, drives
off in his patrol car and arrests (and then robs) a foreign citizen.
§ Is it an excess of authority? – Yes, because for an external observer it is not
possible to know if he is on duty or not. He is wearing the uniform, is driving in
a police car, looks like a police officer therefore he is one. He exercises his
authority as a policeman and arrests the citizen. That does sound like the exercise
of powers, even though legally speaking, here is exceeding his authority, he is
Today’s Lecture
- Idea of state responsibility.
- How is it designed to hold states responsible for actions which violate international law.
- Principles under which state responsibility rests.
- Rules of attribution of conduct. – very tricky, a lot of overlaps, difficult to see which rules
of attribution to use in specific situations.
- Process of establishing state responsibility. – steps and order to see whether a state is
responsible and what happens next. These steps evolve to other parts of state responsibility
such as:
- Circumstances precluding wrongfullness. – year 2 focus.
Basic questions
- Under what conditions will one State be responsible to another State for breaching
international law? – primarily focus on this question in this lecture.
- What consequences legally follow when a State is established to be responsible for a breach
of international law?
- Who may establish that there is a breach of international law for which a State is
responsible?
The law on State responsibility
- A State is legally responsible for breaches of its international obligations, even when there
is no Court or tribunal with a jurisdiction to establish it.
- Different from how responsibility works in domestic legal systems. You’re not responsible
for anything unless proven in a court that you are. Process of establishing responsibility
goes through Court or some other institution.
- In international law it is different (Week 5). Court cases are extremely rare in international
law compared to numbers of disputes states have with one another. States avoid going to a
Court for certain reasons.
- Because of the above, state responsibility, then, is “objective” in a sense that it is triggered
solely by an internationally wrongful act, and not by a decision of a court. – International
wrongful act occurs, so a state has done something that is breach of obligation. International
responsibility comes immediately. You don’t need to wait for a court to make a judgement,
because there may not be a court to do so. You don’t need to do anything else. State
responsibility is objective and automatic.
- How does it work? – International law is a
horizontal system (Week 1), so it is based primarily
on the horizontal direct interaction between states.
So, state responsibility is no different in this regard.
There are 2 states (or more): one state committed a
wrongful act and an injured state that is somehow
hurt by this wrongful act. The latter does not
necessarily have to cause harm like damages of
property. So, there is no tort element to international
wrongful acts. It could just be when one state illegally deports a diplomat for instance:
Might count as an international wrongful act under diplomatic law, but no harm is done
since no damage is caused, no property destroyed, just a bad thing to do. Then, the injured
state claims the responsibility à claims for reparation. So, it asks the responsible state to
, either revoke the illegal action (retribution) or offer excuses for its illegal act. All of this
happens just between 2 states in this basic example. You don’t need anyone else; it is one
state against another. They directly talk to each other. Sometimes with certain violations of
international law, you might have multiple other states involved. However, for now we
focus on this simple situation.
Primary and secondary rules (distinction)
- Primary rules (found in a treaty or customary international law): establish concrete
obligations for States to do (or not do). – Rules learned so far, rules of jurisdiction for
example. Example: A state may claim territorial jurisdiction, upon its territory and anyone
residing in its territory, we know this is the basis. Found in CIL. There are certain
obligations that states have like not exercising their jurisdiction on the territory of another
state without consent. Most rules are on this category: they state rights and obligations for
states.
o States cannot violate human rights (HR).1 These are primarily obligations found in HR
treaties.
o States may not pollute. We find this in international environmental law.
- Secondary rules (rules on State responsibility): rules that specify whether or not a State is
responsible for breaching primary rules and what happens next. Rules about rules. We use
state responsibility rules, they’re secondary rules in a sense that they do not essentially
establish rights and obligations. They provide us rules to detect when primarily obligations
are violated, to see under what conditions that happens, and to establish what happens next!
For the rules of state responsibility to be triggered there must be a wrongfully international
act. But we only know when there is a wrongfully international act when we have secondary
rules at our disposal.
- PRIMARY RULES
o What obligations does a State have?
o We operate under these rules.
o We look at treaty law, customs, general principles of law.
o We try to establish whether a state violate its obligations.
- SECONDARY RULES
o When does a breach entail responsibility? Sometimes states may breach international
law but not be held responsible for that.
o What are the consequences of an internationally wrongful act?
- In the context of domestic law - There are primarily rules that establish rights, obligations,
prohibitions, and privileges for us private individuals (we have certain rights and
obligations under domestic law). But we also have secondary rules that allow us to detect
primarily rules. For example: X rules comes from the Parliament, so it is probably
obligatory. We use certain practice to detect what kind of obligations we have. Two level
system of law exists everywhere, not just international law.
The law on State responsibility: sources!
- UNGA Res 56/83 (2001): Articles on the Responsibility of States for Internationally
Wrongful Acts (ARSIWA) – basic source!
- Prepared by the International Law Commission (late 90s, early 00s).
1
HR – human rights
,- Approved by the General Assembly of UN in 2001 (entered into force).
- Not binding but are generally regarded as reflecting customary international law.
Almost no one doubts that ARSIWA is customary international law. The ICJ has confirmed
in multiple occasions that ARSIWA is CIL. Even more so, the ICJ used articles of state
responsibility even before they entered into force.
- ARSIWA provides secondary rules needed to assess alleged breaches of all kinds of
obligations under primary rules.
- Has several parts. Today we look at part 1 and part 2 of ARSIWA.
Basic rules on State responsibility
- Part 1 has 3 articles. – basic, fundamental rules of state responsibility.
- ARSIWA art. 1 “Every internationally wrongful act of a State entails the international
responsibility of that State” – No need for a court. You have an international wrongful act,
that entails state responsibility. Automatic triggering process.
- The term “international responsibility” relates to the new legal relations which arise under
international law by reason of the internationally wrongful act of a State. Injured state
revokes responsibility.
- International responsibility is a direct and immediate consequence of an internationally
wrongful act. Triggered automatically after international wrongful act occurs.
- ARSIWA art. 2 “There is an internationally wrongful act of a State when conduct
consisting of an action or omission:
o (a) is attributable to the State under international law; and
o (b) constitutes a breach of an international obligation of the State.”
- To see if there is an internationally wrongful act, we must make sure that it is an act of a
State and that this act violates a primary obligation of that State.
- 2 fundamental conditions.
- ARSIWA art. 3 “The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterization is not affected by the characterization
of the same act as lawful by internal law.”
- Domestic law can never be a ground for escaping international responsibility under
international law.
- Also art. 27 VCLT: “A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty. – same logic, idea.
Questions
- What does it mean that an action is triggerable to a state? How do we know that?
- How do we establish this attribution?
- How do we know when there is a breach of an international obligation?
Attribution
- A State is an abstract legal entity, which cannot act on its own.
- States must necessarily act through individual human beings.
- So how can we tell a difference between “just” an act of an individual and an act of a State?
– in both cases we see people constituting certain conduct.
- When is it just people doing constituting certain conduct for people?
- When does an act of individual human being(s) count as an act of State? – basic
question of attribution. This is where the rules of attribution work.
,- Attribution is a set of rules establishing the link between the persons actually
committing the wrongful act and the State.
- Part 2 is all about attribution.
We are trying to see when does an act of individual human being(s) count as an act of State.
ARSIWA Art. 4: State organs (most simple, when we think of state, we think of organs)
- The conduct of State organs is the conduct of that State.
- Legislative, executive, judicial, or any other function.
- Any position within the organisation of the State.
- Whatever level of governance. Doesn’t have to be top level of the government.
Government, Head of State, Parliament, could also be a municipality which is also an organ
of a state. Example: If the municipality of Groningen does something that violates
international obligations of the NL, that would count as an act of the state of the NL, not
just as an act of the municipality.
- Organ ≠ institution; for international law purposes it also includes individual state agents
when acting in official capacity Example: single individual policeman is an organ of the
state and if that one policeman decides to torture someone, that would be an act attributed
to a state, not just to that particular individual because there is an international obligation
under the convention against torture and under CIL that prohibits it.
- What is an organ?
o States can be organized in very different ways.
o Some states can have a very explicit structure with organs with very specific
authorities, competences, but some states don’t really have this.
o So, how do we know when something is an organ?
o Functional approach adopted by international law. Not a formal approach that you
always need to have a specification in the law of a particular organ but more of a
functional approach. You need to see what sort of competences that organ has, what it
normally does – does it perform any public functions? If so, how do other authorities
of that state treat that – do they treat it as authoritative or not, do they treat it as
representative of their government or not?
o “Organ” is not a very self-explanatory term as it may seem.
o The ICJ has dealt with the question of an organ in multiple cases. How do you really
define it?
, ARSIWA Art. 5: Entities exercising governmental authority
- Sometimes there is a situation where states delegate some of their functions to some other
actors. We would NOT call those organs actors of the state, art. 4 does not apply.
- Persons or entities which are not organs of the State but which are empowered by the law
of that State to exercise elements of the governmental authority. Those actions count as
actions of a state.
- Empowerment must be explicit.
- Usually applies to delegated powers (private prisons, private military companies, security
firms with police powers etc.) Example: Government of UK hires private military
companies to perform military operations in certain areas. It involves protection of some
facilities, shipments etc., It is cheaper to hire them, than spending governmental money on
the army. Same applies to private prisons (may violate international obligations such as
inhumane and degrading treatment, torture etc., - prohibited under CIL, so when there is
violation by private prisons, it is counted as a violation by the state where the violation
happened.)
- When you as a state delegate your powers to some private entities and when the latter
violate international obligations, the state is responsible still. Their actions would count as
the state’s actions, even though they are not organs of the state.
ARSIWA Art. 7: Excess of authority
- For example: There is this police force who beat people up to death and then the state is
held responsible for them, but the state says it did not command them to do that. The police
went above of what is allowed by the law, so the state is not responsible. Of course, the
police is responsible and will be punished, but the whole state is not. This excuse DOES
NOT apply in international law because of art. 7 ARSIWA.
- The conduct of an organ of the State is an act of the State even if it exceeds its authority or
contravenes instructions. No easy escape. Still attributed to the state.
- The rule exists to preclude the abuse of authority.
- Someone who is acting above what the law allows that person to act. Person is abusing his
official powers. It could be for personal gain (see police situation below) etc., However, it
doesn’t matter because the action of this person would be attributed to the state of which
the person works for.
- The excess of authority assumes that there is authority: official powers and functions.
Important distinction! But why? ↓
ARSIWA Art. 7: Excess of authority?
- 2 Examples:
o 1. A judge of The Hague Court of Appeals is on a vacation in Maldives. There, he
attacks a local citizen at a bar in a drunken brawl.
§ Is it an excess of authority? – No, because it doesn’t matter if he is a judge. He
is there on a vacation resting. He is just a private individual. He is not there
exercising his authority: powers as a judge.
o 2. During the weekend while not working, a police officer puts on his uniform, drives
off in his patrol car and arrests (and then robs) a foreign citizen.
§ Is it an excess of authority? – Yes, because for an external observer it is not
possible to know if he is on duty or not. He is wearing the uniform, is driving in
a police car, looks like a police officer therefore he is one. He exercises his
authority as a policeman and arrests the citizen. That does sound like the exercise
of powers, even though legally speaking, here is exceeding his authority, he is
