Problem 1: Responsible for what or for whom?
E-lessons: 8 and 9
Literature: chapter 5, 7 and 9
Legislation: Articles on the Responsibility of States for Internationally Wrongful Acts, Vienna
Convection on Diplomatic Relations
Case law: Nicarague vs. US, Tehran hostages, Gabcikovo-Nagymaros
Introduction
Public international law can be divided into primary and secondary international legal rules.
» Primary rules are those rules that stipulate substantive obligations, such as the rules that
prohibit the use of aggressive force.
These rules mat derive from treaties, customary law, binding judicial decisions or other
sources of international law;
» Secondary rules are rules that determine how primary rules are created, interpreted or
enforced. They are the rules about rules.
States remain the principal subjects of international law. A breach by a state of a substantive legal
obligation triggers the law of state responsibility.
When is a State responsible? (NO SELF-DEFENCE) chapter 7, 9
Articles on State Responsibility
The rules on state responsibility, which are an example of a set of secondary rules, are concerned
with:
» Whether there has been a breach of an international obligation;
» Attribution;
» Defences;
» The legal consequences of a breach.
The rules on state responsibility are laid down in the Articles on the Responsibility of States for
Internationally Wrongful Acts (ARSIWA or ASR). The ASR were drafted by the International Law
Commission (ILC), which is a body of international legal experts established by Resolution 174(II) of
the United Nations General Assembly in 1947, with the purpose of the progressive development and
codification of international law.
The ILC Articles on State Responsibility do not constitute a treaty. The ASR do, however, generally
reflect customary international law (gewoonterecht), except for specific parts of the Articles relating to
the general interests of the international community and the position of non-injured states.
Internationally Wrongful Act
The starting point for the rules on state responsibility is that every international wrongful act of a state
entails state responsibility (Article 1 ILC Articles). An internationally wrongful act by a state must fulfill
all three conditions to be considered as such (Article 2 ICL Articles):
1. There must be an act or omission (verzuim);
2. Which is attributable to that state under international law;
3. It must constitute a breach of an international obligation of that state.
A breach of an international obligation by a state exists when an act or omission of that state is not in
conformity with what is legally required of the state, regardless of the origin or character of that
act/omission (Article 12 ILC Articles).
» It follows from Article 2 and 12 (ARS) that an internationally wrongful act can consist of either
one or more acts or omissions of a state;
» In the Tehran Hostages case, for instance, the International Court of Justice (ICJ),
found that Iran was responsible both its acts (specifically, the approval, of the hostage
taking and the occupation of the US Embassy by private militants) and for its
omissions (specifically, the inaction of its authorities to protect the American embassy
and its staff;
» Article 11 ASR corresponds to the Tehran Hostages judgment as it stipulates that the
conducts of private actors could be attributed to a state, when the state concerned
endorses and adopts the acts of the private actors as its own.
E-lessons: 8 and 9
Literature: chapter 5, 7 and 9
Legislation: Articles on the Responsibility of States for Internationally Wrongful Acts, Vienna
Convection on Diplomatic Relations
Case law: Nicarague vs. US, Tehran hostages, Gabcikovo-Nagymaros
Introduction
Public international law can be divided into primary and secondary international legal rules.
» Primary rules are those rules that stipulate substantive obligations, such as the rules that
prohibit the use of aggressive force.
These rules mat derive from treaties, customary law, binding judicial decisions or other
sources of international law;
» Secondary rules are rules that determine how primary rules are created, interpreted or
enforced. They are the rules about rules.
States remain the principal subjects of international law. A breach by a state of a substantive legal
obligation triggers the law of state responsibility.
When is a State responsible? (NO SELF-DEFENCE) chapter 7, 9
Articles on State Responsibility
The rules on state responsibility, which are an example of a set of secondary rules, are concerned
with:
» Whether there has been a breach of an international obligation;
» Attribution;
» Defences;
» The legal consequences of a breach.
The rules on state responsibility are laid down in the Articles on the Responsibility of States for
Internationally Wrongful Acts (ARSIWA or ASR). The ASR were drafted by the International Law
Commission (ILC), which is a body of international legal experts established by Resolution 174(II) of
the United Nations General Assembly in 1947, with the purpose of the progressive development and
codification of international law.
The ILC Articles on State Responsibility do not constitute a treaty. The ASR do, however, generally
reflect customary international law (gewoonterecht), except for specific parts of the Articles relating to
the general interests of the international community and the position of non-injured states.
Internationally Wrongful Act
The starting point for the rules on state responsibility is that every international wrongful act of a state
entails state responsibility (Article 1 ILC Articles). An internationally wrongful act by a state must fulfill
all three conditions to be considered as such (Article 2 ICL Articles):
1. There must be an act or omission (verzuim);
2. Which is attributable to that state under international law;
3. It must constitute a breach of an international obligation of that state.
A breach of an international obligation by a state exists when an act or omission of that state is not in
conformity with what is legally required of the state, regardless of the origin or character of that
act/omission (Article 12 ILC Articles).
» It follows from Article 2 and 12 (ARS) that an internationally wrongful act can consist of either
one or more acts or omissions of a state;
» In the Tehran Hostages case, for instance, the International Court of Justice (ICJ),
found that Iran was responsible both its acts (specifically, the approval, of the hostage
taking and the occupation of the US Embassy by private militants) and for its
omissions (specifically, the inaction of its authorities to protect the American embassy
and its staff;
» Article 11 ASR corresponds to the Tehran Hostages judgment as it stipulates that the
conducts of private actors could be attributed to a state, when the state concerned
endorses and adopts the acts of the private actors as its own.
