Law 2101 Study Guide - Quiz Guide: Ultra Vires, Guerrilla Warfare, Peremptory Norm
Attributability
− unlawful act has to be attributable and has to be an act of the STATE
− organs or individuals violating international law have to do so on behalf of the state, of not there is
no breach of international law
− the attribution is judged by international law, while national law is supplementing the legal status
of the person in question , therefore an act can be wrongful under international law while it is lawful
under national law
− Arts. 4-11 ILC DA reflect customary law (approved by Bosnia and Herzegovina v. Serbia &
Montenegro)
Organs of the State:
− organs of state in accordance with Art. 4 ILC DA: ‘exercising legislative, executive or judiciary or
other functions, as an organ of the central government or of any territorial unit of the state, including
any person or entity which has that status in accordance with internal law of the state’
− cornerstone for attributing responsibility
− The acts of an organ are still attributable to the state, also if they are outside the sphere of
competence granted to them by national law (Art. 7 ILC DA)
− reflects the principle of responsibility is determined by international law, prohibiting states to
artificially limiting their organs in order to avoid international liability
− groups or entities may be equated to state organs even if they don’t have this status under internal
law, providing it is dependent on the state and the state works through this group or instrument
(principle of complete dependency)
− Art. 7 imposes responsibility for ultra vires acts (irrelevant whether it was clear that the organ work
in the name of the state, the organ merely has to act in the capacity of an organ of the state, therefore
no reason for apparent authority → strict liability approach)
Private Individuals:
− Individuals acting as an organ of the state are not personally liable, while the state is responsible
for their actions (Bosnia and Herzegovina)
− Individuals that are not directly acting on behalf of the state:
o Art. 5 and 9 ILC DA: where individuals are empowered by local law to act on behalf of
the state and are so doing (private persons as police man, law enforcement)
Document Summary
Unlawful act has to be attributable and has to be an act of the state. 4-11 ilc da reflect customary law (approved by bosnia and herzegovina v. serbia & Organs of state in accordance with art. The acts of an organ are still attributable to the state, also if they are outside the sphere of competence granted to them by national law (art. 7 ilc da) reflects the principle of responsibility is determined by international law, prohibiting states to artificially limiting their organs in order to avoid international liability. Individuals acting as an organ of the state are not personally liable, while the state is responsible for their actions (bosnia and herzegovina) Individuals that are not directly acting on behalf of the state: art. 5 and 9 ilc da: where individuals are empowered by local law to act on behalf of the state and are so doing (private persons as police man, law enforcement: art.
