Chapter 7 Guidance on Answering the Questions in the Book

Question 1:
Why are the rules on state responsibility classified as secondary rules of international law?

Guidance:
The question invites students to consider the difference between primary and secondary rules of international law. The book notes that primary rules are those that define the particular obligations that generate responsibility if violated whereas secondary rules determine the consequences of violating the primary rules. Since the purpose of the rules on state responsibility is to determine what the international legal consequences are for breaching substantive obligations within international law, they are referred to as secondary rules in international law.

Question 2:
Can a state be in breach of its international obligations due to acts of private individuals?

Guidance:
The question concerns the question of state responsibility for acts of private individuals. The book notes that it is a core element of state responsibility that wrongful conduct can be attributed to a state and that the relevant provisions in the ILC articles on state responsibility are based on the main rule that a state is not responsible for acts of private individuals that cannot be attributable to a state. Depending on the primary rule, however, a state may be in breach of its obligations as a result of private acts. To that end the book makes reference to the ICJ’s Tehran Hostages case where Iran was found in breach of international law because it did not offer the US Embassy the protection from private acts it was required to under the Vienna Convention on Diplomatic Relations (the primary rules). It is also noted how a more general obligation to offer protection from private acts was implied in the Corfu Channel case. Reference should also be made to the “due diligence” obligations contained in international environmental law (Chapter 9) as well as the discussion of state responsibility for acts of private individuals in human rights law (see Chapter 8).

Question 3:
What is the relationship between treaty law and state responsibility?

Guidance:
The question relates to an issue that some students tend to conflate: the link between treaty-based obligations and state responsibility. The book notes that it is within the international law of treaties that one determines if a treaty is in force or not, how it should be interpreted and if a treaty-based obligation been suspended, for example due to invalidity. The rules on responsibility, on the other hand, deal with the consequences of breaching a treaty obligation that is in force.

Question 4:
What are the conceptual differences between peremptory norms/jus cogens and erga omnes obligations?

Guidance:
The question encourages students to consider the concept of erga omnes obligations and to distinguish erga omnes from jus cogens. The concept of erga omnes relates to the question of who may invoke a breach of international law. The concept of jus cogens, on the other hand, refers to a set of norms that are so fundamental that no derogation is permitted, see Art. 53 in the Vienna Convention on Treaties and the discussion in Chapter 2. In Chapter 7, jus cogens is referred to in the discussion of lawful countermeasures where it is noted that a state cannot preclude the wrongfulness of any act that violates a peremptory norm/jus cogens character. Erga Omnes is also discussed under Question 6.

Question 5:
Why was the 2007 Behrami decision from the European Court of Human Rights criticized?

Guidance:
The question concerns the controversial ECtHR decision in the Behrami case that is mentioned in the book in the discussion of the international responsibility of international organizations. In the case, the European Court of Human Rights concluded that acts by KFOR troops in Kosovo could be attributed to the UN and not the troop-contributing NATO states because the UN Security Council had retained ‘ultimate authority and control’ and only delegated operational control to the states. That rationale was criticized because it essentially allowed a state to avoid international responsibilities for acts committed in the course of such operations. The book also notes that the Court seems to have backtracked from its conclusions in Behrami. A reference could also be made to the ILC’s 2011 commentary to the relevant article where it is noted that what ought to be decisive is the element of ‘factual control’ and who directs the forces when the relevant conduct occurs.

Question 6:
When may a state invoke the responsibility of another state?

Guidance:
The question asks the students to determine who may invoke the responsibility of another state. The book notes the fundamental principle that it is the state that has been wronged (‘injured state’) that is entitled to invoke the responsibility of the responsible state. A state is considered to be an injured state if the obligation breached was owed to it individually or to a group of states and the breach ‘specially affects’ the state or if the obligation breached radically changes the position of all other states to which the obligation is owed. Reference should also be made to the concept of erga omnes mentioned in Question 4. The ILC articles specify, however, that a state does not always have to be considered ‘injured’ to be entitled to invoke the responsibility of another state. There are two types of erga omnes obligations. The first is erga omnes partes obligations where a non-injured state may invoke the responsibility of another state ‘if the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group’. The book lists a number of examples of such erga omnes partes obligations. The second form is that of (pure) erga omnes obligations that was introduced in the Barcelona Traction case where the Court noted the existence of obligations of a State “towards the international community as a whole”. Such obligations can be invoked not only by an ‘injured’ state but by any state.