Later the Ayatollah endorsed taking occupaton of the embassy and the detenton

Later the ayatollah endorsed taking occupaton of the

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actng as agents of Iran). Later the Ayatollah endorsed taking /occupaton of the embassy and the detenton of the US staf. ICJ held that this endorsement made the students agents of the State → acts atributable to Iran. Acts of Individuals Generally, the acts of private individuals are not atributable to the State. Two exceptons to this rule are: o Acts of ‘ instructed persons’ – eg where an individual is ‘recruited’ by a government agency to act in a private capacity (volunteer) to make sure that the act is conducted outside the ofcial structure. o Acts of a person ‘directed or controlled’ by the State – eg where third partes (usually a rebel group) act under the directon of another State Nicaragua case where ICJ held that the US was partally responsible for the directon / control of the rebel Contra movement → responsible for some of the breaches of humanitarian law commited by the Contra rebels. o ICJ used a narrower ‘efectve control test’ – looked for control that was ‘specifcally’ linked to the alleged violatons In the Tadic case: (Tadic was a Serbian politcal leader who was charged with several crimes against humanity and war crimes) ICTY looked at whether the actons of Tadic should be atributed to Yugoslavia ICTY held that the degree of control required should vary according to the facts of each case. Downloaded by Ashleigh Nicolau ([email protected]) lOMoARcPSD|2420463
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Enforcing Responsibility To enforce State responsibility, certain conditons must be met o Natonality of claimant; o Whether local remedies have been exhausted; and o There is a duty to exercise diplomatc protecton (ie no waiver) Natonality of Claimant o Requirement is that State may only bring a claim in relaton to one of its own natonals ( Panevezys – Saldutskis Railway case; see also Mavrommats Palestne Concession case ). o Individual must have been a natonal of that State at the tme that the injury / loss occurred AND at the tme claim was made. o Becomes difcult when people have dual natonality Courts generally apply an ‘efectve natonality’ approach (See Notebohm case : ICJ held no real and efectve link between Notebohm (German born) and Liechtenstein which could support the clam being bought by Liechtenstein, against Guatamala, on behalf of Notebohm.) The Flegenhelmer Claim provides guidance / clarifcaton on the use of the efectve natonality test for single natonality and mult-natonal claimants. o Held that the efectve natonality test should not be used: where claimant has single natonality; or where claimant has multple natonalites and one State is trying to oppose the natonality of another State. Enforceability issues can also arise where corporate enttes have sufered a loss / damage as the result of a State’s internatonally unlawful act. o Approach taken is that limited liability companies are considered to be ‘natonals’ of the State. ( See Barcelona Tracton Case ) Exhauston of Local Remedies o Under PIL there is a requirement that before diplomatc protecton (ie
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