CYIL vol. 12 (2021)
jan ondřej CYIL 12 (2021) International Court of Justice, the second phase of the case occurred when the conduct of the persons concerned gave rise to state responsibility. 19 Article 11 of the ARSIWA essentially expresses the second phase of events in which the conduct of persons who have entered the embassy premises was approved. However, cases where the state approves such cases of behaviour are considered very exceptional. Rather, it is based on the opposite situation, where the state distances itself from the behaviour of private persons. 20 However, the first phase of events, as expressed by the International Court of Justice, is also important in terms of responsibility. In the first phase of the above-mentioned case, the state was not responsible for the behaviour of students, but it became responsible for the behaviour of its own bodies . 21 Its own conduct was incompatible with its international obligations, for example, under Article 22 of the 1961 Vienna Convention on Diplomatic Relations, the state has an obligation to protect the premises of the mission. The situationwas expressed in Article 11(2) adopted at the first reading of the Draft Articles on State Responsibility for Internationally Unlawful Acts 22 in 1996. The first paragraph 23 of Article 11 of 1996 stipulates that the conduct of persons or groups of persons not acting on behalf of the state is not considered to be conduct by the state under international law. It expresses the basis of the construction of responsibility that the state is responsible for its own behaviour, but not for the behaviour of private persons. The second paragraph 24 of Article 11 expresses the attribution of act which relates to persons or groups of persons, and which is to be regarded as conduct by the state under Articles 5 through 10. The first phase of the case of diplomatic and consular staff is thus a case where the state is not responsible for the behavior of private persons, but the state may incur responsibility in connection with the behavior of private persons for neglect of the obligation of prevention , or subsequent repression . The construction is still preserved in such a way that the state is responsible for its own behavior, i.e., its authorities are responsible. In that regard, Crawford 25 also stated that conduct which is not attributable to the state because it is not carried out by its organs or agents may nevertheless be chargeable to the state on the ground that the state has failed in its obligation to prevent conduct. For example, he cites the case of Tehran, in which Iran violated its special obligation to protect embassies and consular rooms and staff by accepting the behavior of occupying students. 19 Ibid., paras. 69–74. 20 ČEPELKA, Č., ŠTURMA, P. Public International Law, 2nd edition. Prague: C. H. Beck, 2018, p. 393. 21 Case Concerning U.S. Diplomatic and Consular Staff in Teheran ( U.S v. Iran ) I.C.J. Reports 1980, para. 61, 63. 22 The Report of the ILC, Official Records of the General Assembly. Fifty-first Session, Supplement No. 10 (A/51/10 and Corr.l, 1996, pp. 125–151). 23 Article 11 paragraph. 1. The conduct of a person or a group of persons not acting on behalf of the state shall not be considered as an act of the state under international law. 24 Article 11 paragraph 2. Paragraph 1 is without prejudice to the attribution to the state of any other conduct which is related to that of the persons or groups of persons referred to in that paragraph and which is to be considered as an act of the state by virtue of Articles 5 to 10. 25 CRAWFORD, J. in: EVANS, M. D. (ed.) International Law. 2nd edition. Oxford: Oxford University Press, 2006, p. 462.
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