Hoorcolleges Internationaal recht
22-2-2023
Secondary rules and ARSIWA history
Lotus Principle – sovereign States may act in any way they wish so long as they do not
contravene international law
Primary rules; international legal rules that limit State conduct (e.g. rights and duties)
Secondary rules: international legal rules about rules, how to make, interpret, change, apply
and enforce primary rules.
Vienna convention / Responsibility of State for Internationally Wrongful acts
o Art. 2 ARSIWA:
There is an internationally wrongful act of a state when conduct
consisting of an action or omission.
Is attribution to the state under international law
o State – abstract legal concept that acts through
individuals (states move through individuals,
o Attribution – if u want to hold the dutch government
responsible, you have to show a legal connection
between the people of the government and international
law. Legal link between abstract State and individual
conduct that breaches international law.
o State organ under national law (art. 4) (e.g. executive
legislative, judicial, sub-national – for example the
lawyer of tilburg
o Exercise of governmental authority delegated in
national law (art. 5) – the authority is given by the
government, (e.g. contracted prison guards, border
control).
National law
Must act in official capacity – not of dutie or on
vacation
Attribution possible even if conduct ultra vires
(art. 7)
Constitutes a breach of an international obligation of the state
o International obligation
o Of a state
o Act or omission – liability for violating to act, fall to do
something
o Breach of international obligation
o Breach occurred when obligation existed – states do not
exist forever.
If a polish soldier injures a migrant family on its territory, is the State of Poland responsible for
an international wrongful act?
Yes, because the army is an organ of the State and acting in a official capacity.
Attribution of conduct by private individuals
General rule: States not responsible for private individuals conduct.
, Exceptions:
- Individuals is instructed by the State, acts in official capacity and conduct not ultra
vires (art. 8)
- Individual is under the State’s effective control, acts in official capacity and conduct is
not ultra vires (art. 8). – very difficult test
- Individual acts as the government where it is absent – think of a war, and the state is
not present to say what to do, so doctor says we have to build a hospital – people
come forward to the state, in this situation there is a link between the state and the
person.
- Individuals opposes the government but then becomes the government (art. 10)
- State acknowledges and adopt individual’s conduct as its own (art. 11). – the state
says its good what the action of the individual conduct is.
Consequences of State responsibility
- A state is never a criminal, so no punishment
o Germany is not a criminal after World War II
- Duty of performance (art. 29)
o You still have the obligation that you have to perform, even after violating it
- Duty to stop the internationally wrongful act (art. 30)
- Assure and guarantee non-repetition (art. 30)
o You guarantee that you never will do it again.
- Duty of full reparation (with interest) for material and moral injury (art. 31 and 38)
o Financial consequences
Restitution ‘re-establish the situation which existed before the
wrongful act was committed (art. 35).
Two exceptions: impossible or burden disproportionate to
benefit – think about oil spil, its very hard to restore the
situation
Compensation ‘financially assessable damage caused (art. 36)
States will hire expert to assess the material damage.
Satisfaction for injury that cannot be repaired by restitution or
compensation (art. 37)
Two exception: cannot be disproportionate to injury or
humiliating to responsible State
- Countermeasures (art. 49)
o Another state can say we are not going to act our obligation because the other
state does not do is.
- Can be combined with a of the above.
Injured State and erga omnes duties – who has the right to asses the consequences of State
responsibilities (who can stand up and claim a restitution)
- Only a injured state can invoke responsibility of another state (art. 42) – a state can
claim a remedy that is injured
o Breached duty owed to individual State – for example a treaty and you can
point to a obligation;
o Breached duty owed to a group of State, including that State – the duty was
owed to all of the state (e.g. multilateral treaty)
o Duty is owed to all State (erga omnes – reference to the legal standing to
claim a breach of generally norms) – owed by each state to each state –
generally norms
If duty owed to a group of State or all State (2 or 3), injured State invoking responsibility of
another state must be specially affected by the breach or the breach radically changes the
position of all states to which the duty is owed.
22-2-2023
Secondary rules and ARSIWA history
Lotus Principle – sovereign States may act in any way they wish so long as they do not
contravene international law
Primary rules; international legal rules that limit State conduct (e.g. rights and duties)
Secondary rules: international legal rules about rules, how to make, interpret, change, apply
and enforce primary rules.
Vienna convention / Responsibility of State for Internationally Wrongful acts
o Art. 2 ARSIWA:
There is an internationally wrongful act of a state when conduct
consisting of an action or omission.
Is attribution to the state under international law
o State – abstract legal concept that acts through
individuals (states move through individuals,
o Attribution – if u want to hold the dutch government
responsible, you have to show a legal connection
between the people of the government and international
law. Legal link between abstract State and individual
conduct that breaches international law.
o State organ under national law (art. 4) (e.g. executive
legislative, judicial, sub-national – for example the
lawyer of tilburg
o Exercise of governmental authority delegated in
national law (art. 5) – the authority is given by the
government, (e.g. contracted prison guards, border
control).
National law
Must act in official capacity – not of dutie or on
vacation
Attribution possible even if conduct ultra vires
(art. 7)
Constitutes a breach of an international obligation of the state
o International obligation
o Of a state
o Act or omission – liability for violating to act, fall to do
something
o Breach of international obligation
o Breach occurred when obligation existed – states do not
exist forever.
If a polish soldier injures a migrant family on its territory, is the State of Poland responsible for
an international wrongful act?
Yes, because the army is an organ of the State and acting in a official capacity.
Attribution of conduct by private individuals
General rule: States not responsible for private individuals conduct.
, Exceptions:
- Individuals is instructed by the State, acts in official capacity and conduct not ultra
vires (art. 8)
- Individual is under the State’s effective control, acts in official capacity and conduct is
not ultra vires (art. 8). – very difficult test
- Individual acts as the government where it is absent – think of a war, and the state is
not present to say what to do, so doctor says we have to build a hospital – people
come forward to the state, in this situation there is a link between the state and the
person.
- Individuals opposes the government but then becomes the government (art. 10)
- State acknowledges and adopt individual’s conduct as its own (art. 11). – the state
says its good what the action of the individual conduct is.
Consequences of State responsibility
- A state is never a criminal, so no punishment
o Germany is not a criminal after World War II
- Duty of performance (art. 29)
o You still have the obligation that you have to perform, even after violating it
- Duty to stop the internationally wrongful act (art. 30)
- Assure and guarantee non-repetition (art. 30)
o You guarantee that you never will do it again.
- Duty of full reparation (with interest) for material and moral injury (art. 31 and 38)
o Financial consequences
Restitution ‘re-establish the situation which existed before the
wrongful act was committed (art. 35).
Two exceptions: impossible or burden disproportionate to
benefit – think about oil spil, its very hard to restore the
situation
Compensation ‘financially assessable damage caused (art. 36)
States will hire expert to assess the material damage.
Satisfaction for injury that cannot be repaired by restitution or
compensation (art. 37)
Two exception: cannot be disproportionate to injury or
humiliating to responsible State
- Countermeasures (art. 49)
o Another state can say we are not going to act our obligation because the other
state does not do is.
- Can be combined with a of the above.
Injured State and erga omnes duties – who has the right to asses the consequences of State
responsibilities (who can stand up and claim a restitution)
- Only a injured state can invoke responsibility of another state (art. 42) – a state can
claim a remedy that is injured
o Breached duty owed to individual State – for example a treaty and you can
point to a obligation;
o Breached duty owed to a group of State, including that State – the duty was
owed to all of the state (e.g. multilateral treaty)
o Duty is owed to all State (erga omnes – reference to the legal standing to
claim a breach of generally norms) – owed by each state to each state –
generally norms
If duty owed to a group of State or all State (2 or 3), injured State invoking responsibility of
another state must be specially affected by the breach or the breach radically changes the
position of all states to which the duty is owed.
