Permutations of responsibility in international law

Addendum/a AFDI Annuaire français de droit international AFJICL African Journal of International and Comparative Law AJIL American Journal of International Law ALI American Law Institute

Queen Mary Studies in International Law

Edited by

Malgosia FitzmauriceSarah Singer

volume 36

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Permutations of Responsibility

in International Law

Edited by

Photini Pazartzis Panos Merkouris

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∵

5 The Limits of Responsibility: Liability for Damage in

the Deep Seabed?  69

Ilias Plakokefalos

6 Fisheries and State Responsibility: Lessons to be Learned from Recent Case-Law  90

Efthymios Papastavridis

7 A Little Less Conversation and a Little More Action (Property and Liability Rules in the DSU Review of the WTO)  120

AB Appellate Body

Add Addendum/a

AFDI Annuaire français de droit international

AFJICL African Journal of International and Comparative Law

AJIL American Journal of International Law

ALI American Law Institute

ANPA Gabonese Fisheries Enforcement Agency

Arb Intl Arbitration International

ario 2011 ilc Articles on the Responsibility of International Organizations ARSIWA 2001 ILC Articles on Responsibility of States for Internationally

Wrongful ActsASIL American Society of International Law

ATCA Alien Tort Claims Act

ATS Alien Tort Statute

AUILR American University International Law Review

AULR American University Law Review

Berkeley J Intl L Berkeley Journal of International Law

BIICL British Institute of International and Comparative Law

BIT/s Bilateral Investment Treaty/Treaties

BJIL Berkeley Journal of International Law

BYBIL British Yearbook of International Law

CARU Administrative Commission of the River Uruguay

CETA Comprehensive Economic and Trade Agreement

CIA Central Intelligence Agency

CJEU Court of Justice of the European Union

CJICL Cambridge Journal of International and Comparative Law

CLCs Contingent Liberalization Commitments

CLR Columbia Law Review

COMESA Common Market for Eastern and Southern Africa

Corp Corporation

Corr Corrigendum/a

DCF Discounted Cash Flow

DDG Deputy Director General

DSB Dispute Settlement Body

e.g exempli gratia

EC European Community

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

ed./eds editor/s

edn edition

EEZ Exclusive Economic Zone

EJIL European Journal of International Law

Emory ILR Emory International Law Review

EPA Economic Partnership Agreement

et al et alii

et seq et sequentia

EU European Union

FAO Food and Agriculture Organization

FET Fair and Equitable Treatment

FMV Fair Market Value

FSC Foreign Sales Corporations

FTA Free Trade Agreement

FYROM Former Yugoslav Republic of Macedonia

GATT General Agreement on Tariffs and Trade

GC Grand Chamber

GMOs Genetically Modified Organisms

GVCs Global Value Chains

GYBIL German Yearbook of International Law

HILJ Harvard International Law Journal

HJIL Harvard Journal of International Law

HLR Harvard Law Review

HNS Hazardous and Noxious Substances

HRC UN Human Rights Committee

i.e id est

IACtHR Inter-American Court of Human Rights

Ibid Ibidem

ICC International Criminal Court

ICJ International Court of Justice

ICJ Rep International Court of Justice Reports

ICLQ International and Comparative Law Quarterly

ICSID International Centre for Settlement of Investment Disputes

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the former Yugoslavia

IIA/s International Investment Agreement/s

ILA International Law Association

ILC International Law Commission

ILM International Legal Materials

IMF International Monetary Fund

IMLI International Maritime Law Institute

IMT International Military Tribunal

ipa Investment Protection Agreement

IPOA-IUU International Plan of Action to Prevent, Deter and Eliminate Illegal,

Unreported and Unregulated FishingISA International Seabed Authority

ITLOS International Tribunal for the Law of the Sea

itlos Rep itlos Reports

IUU Illegal, Unreported and Unregulated

IYBIL Italian Yearbook of International Law

JDI Journal du droit international

JENRL Journal of Energy and Natural Resources Law

JICJ Journal of International Criminal Justice

JIDS Journal of International Dispute Settlement

JIEL Journal of International Economic Law

JILP New York University Journal of International Law and Politics JLS Journal of Legal Studies

JWIT Journal of World Investment and Trade

JWT Journal of World Trade

LGDJ Librairie générale de droit et de jurisprudence

LJIL Leiden Journal of International Law

LLC Limited Liability Company

LOSC 1982 United Nations Convention on the Law of the Sea

MAS Mutually Agreed Solution

Melbourne jil Melbourne Journal of International Law

MERCOSUR El Mercado Común del Sur

MFN Most Favored Nation

MJIL Michigan Journal of International Law

MPA Marine Protected Area

NAFTA North American Free Trade Agreement

NGOs Non-Governmental Organizations

NILR Netherlands International Law Review

No./Nos Number/s

Nord J Intl L Nordic Journal of International Law

NYBIL Netherlands Yearbook of International Law

OECD Organisation for Economic Co-operation and Development

OJ Official Journal of the European Communities

para./paras paragraph/s

PCA Permanent Court of Arbitration

PPI Producer Price Index

PSCs Private Security Companies

PSM Agreement 2009 Agreement on Port State Measures to Prevent, Deter and

Eliminate Illegal, Unreported and Unregulated FishingPTA Preferential Trade Agreement

RBDI Revue belge de droit international

RCADI Recueil des cours de l’ Académie de la Haye

RCDIP Revue critique de droit international privé

RGDIP Revue générale de droit international public

RIAA Review of International Arbitral Awards

RQDI Revue québécoise de droit international

SAYIL South African Yearbook of International Law

SCC Stockholm Chamber of Commerce

SCJIL Santa Clara Journal of International Law

SCS Southern Cross Security

SDGs Sustainable Development Goals

SDRs Special Drawing Rights

SFPA Sustainable Fisheries Partnership Agreement

SRFC Sub-Regional Fisheries Commission

SSCS Sea Shepherd Conservation Society

TBT Technical Barriers to Trade

TDM Transnational Dispute Management

TRIPs Trade-Related Intellectual Property Rights

TTIP Transatlantic Trade and Investment Partnership

Tulane MLJ Tulane Maritime Law Journal

ucla jelp University of California, Los Angeles Journal of Environmental Law

and Policy uclr University of Cincinnati Law Review

UN United Nations

UNCITRAL United Nations Commission on International Trade Law

UNCTAD United Nations Conference on Trade and Development

UNEP United Nations Environment Programme

UNGA United Nations General Assembly

UNGA United Nations General Assembly

UNPROFOR United Nations Protection Force

unts United Nations Treaty Series

US/USA United States of America

USMT United States Military Tribunal

v versus

VCLT 1969 Vienna Convention on the Law of Treaties

VCLT-II 1986 Vienna Convention on the Law of Treaties between States and

In-ternational Organizations

VirgJIL Virginia Journal of International Law

VJIL Vanderbilt Journal of International Law

Vol Volume

WTO World Trade Organization

WTO DSU WTO Dispute Settlement Understanding

WTR World Trade Review

YBIEL Yearbook of International Environmental Law

YILC Yearbook of the International Law Commission

YJIL Yale Journal of International Law

YLJ Yale Law Journal

ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

of Athens.

Photini Pazartzis

Professor of International Law, Faculty of Law, National and Kapodistrian versity of Athens; Member of the UN Human Rights Committee

∵

Introductory Reflections

Malgosia Fitzmaurice

This book of essays stemmed from a Regional Conference organized by the ila-Hellenic Branch in memory of Professor Arghyrios Fatouros, to whom this book is devoted The chapters included herein address one of the most widely written about topics of international law, which remains, however, mysterious and, as this volume evidences, not yet fully explored.1 This book investigates the variety of the permutations of responsibility, which in many cases cannot

be analysed within the strict confines of the 2001 Articles on the ity of States for Internationally Wrongful Acts (arsiwa).2 The present volume provides an extensive analysis of legal questions which are linked to respon-sibility It investigates in Part 1 subjects of responsibility (States to non-State actors and beyond) and in Part 2 multiple manifestations of responsibility in different legal regimes are examined (such as law of the sea; human rights; trade law)

Responsibil-The 2001 arsiwa have been further developed by the rich, in this respect, practice of international judicial bodies and as is analysed in the Chapter of Professor Antonopoulos, not always in a consistent fashion There are still many areas of responsibility, which await further analysis and which despite the continuous efforts of international judicial bodies, are not satisfactorily analysed, explained and solved In view of the author of these introductory reflections, such an unresolved question remains the complex and at times vexing relationship between material breach and countermeasures Despite a sizeable case-law in this respect, the intricacies of this troubled relationship

1 See e.g J Crawford, The International Law Commission’s Articles on State

Responsibil-ity: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002);

J Crawford et al (eds.), The Law of International Responsibility, (Oxford: Oxford University

Press, 2010).

2 2001 ilc Articles on Responsibility of States for Internationally Wrongful Acts in: ilc, “Report

of the International Law Commission Covering its 53rd Session”, A/56/10 (2011) reproduced

in: yilc [2001/II Part Two]: 1.

are not fully understood, both by scholars in academic writings and also by States, pleading before various judicial bodies.3

The Chapter which illustrates extensively the intricacies and unexplored areas regarding State responsibility is the one on “Fisheries and State Re-sponsibility: Lessons to be Learned from Recent Case-Law” by Dr Efthymios

Papastavridis Despite a sizeable and very important case-law (2015 Fisheries Advisory Opinion; 2016 South China Arbitration; 2015 Chagos Marine Protected Areas Arbitration) throwing some light on the question of State responsibil-

ity and clarifying many pertinent questions, there is still a whole host of sues requiring further investigation The obligations of flag States in respect of fisheries are due diligence obligations It is a very ill—defined concept and as

is-it was stated by is-itlos also a fluid one, which further complicates the matter

As Papastavridis has observed there are further complex issues muddying the concept of State responsibility in relation to fisheries: the attribution of State responsibility to non-State actors; the invocation of circumstances precluding wrongfulness; and consequences arising from a wrongful act (cessation and reparation) Therefore, as it was stated above, all these problems requiring ex-tensive research and analysis evidence the unlimited permutations of applica-tion of classical principles of State responsibility

The extended period of time which was required by the International Law Commission (ilc) in order to complete its work on the arsiwa is due to the complexity of the nature of State responsibility The fairly straightforward defi-nition of what constitutes a wrongful act in international law, i.e that “[t]here

is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State”,4 is chal-lenged in more complex situations where there is no direct link between the act and the State and where the fundamental questions of attribution arise In such a scenario, international courts and tribunals have to render a judgment

on each and every individual case, leading at times to diametrically opposing

3 See e.g Gabcíkovo-Nagymaros Case (Hungary/Slovakia), Judgment of 25 September 1997, [2007] icj Rep 7; Application of the Interim Accord of 13 September 1995 (the former Yugoslav

Republic of Macedonia v Greece), Judgment of 5 December 2011, [2011] icj Rep 644; Air vice Agreement of 27 March 1946 between the United States of America and France, Arbitral

Ser-tribunal, Award of 9 December 1978, riaa 18 (1978): 417–493; Case Concerning the Difference

between New Zealand and France Concerning the Interpretation or Application of Two ments, Concluded on 9 July 1986 between the Two States and which Related to the Problems Aris- ing from the Rainbow Warrior Affair, Arbitral tribunal, Award of 30 April 1990, riaa 20 (1990):

Agree-215–284.

4 Article 2 arsiwa.

findings.5 The question of indirect responsibility is raised by Dr Voulgaris in his very interesting Chapter on establishing international responsibility in rendition cases before the European Court of Human Rights (ECtHR) He

analyses in-depth the El-Masri v the Former Yugoslav Republic of Macedonia, as

well as a string of other relevant cases before the ECtHR.6 On the basis of his analysis he draws the following conclusions: “The application of international responsibility rules by the Strasbourg Court in rendition cases, to the extent that it questions the dominant asr responsibility paradigm certainly raises some eyebrows as it does not contribute to this cause The relevant upcoming cases before the Court will demonstrate whether the ECtHR will fully align with the asr reaffirming thus their authority or it will further an alternative approach with the ramifications that this may imply” Such a varied approach adopted by various courts and tribunals leads to a very fragmented legal re-gime and is a contributory factor to the lack of certainty for States

The strict fundamental principle underlying the arsiwa construct that was adopted by the ilc, i.e the division into primary and secondary norms, might

be quite confusing in relation to obligations based on due diligence (which is

an obligation of conduct not result) as a primary norm, as in these instances, compliance with this obligation assessed on the basis of the circumstances

of each case and the ability of a State in these circumstances to observe it (Antonopoulos)

The present publication challenges the precepts of State responsibility from the theoretical and practical points of view It introduces a fascinating theo-retical approach to State responsibility, drawing upon the theory of Hohfeld The aim of this contribution by Giannakopoulos is “to theorise the concept

of a right to regulate in international law and international investment law and … to assess the ways in which the right to regulate may be employed in the process of legal argumentation and to ascertain the implications that the invocation of that right has for the State’s international responsibility Because there exists no single idea or concept of the right to regulate, the primary ana-lytical tool that will be used to conceptualise it is Wesley Newcomb Hohfeld’s seminal analysis of the web of jural relations that arise by the use of the single term ‘right’”

5 See e.g., Case Concerning Military and Paramilitary Activities in and against Nicaragua

( Nicaragua v usa) (Merits), Judgment of 27 June 1986, [1986] icj Rep 14; Prosecutor v Dusko Tadić, icty, Appeals Chamber, Judgment of 15 July 1999, Case No IT-94-1-A, para 145 See also Loizidou v Turkey, ECtHR, Judgment of 18 December 1996, Application No 15318/89, para 56.

6 El-Masri v The Former Yugoslav Republic of fyrom, ECtHR [GC], Judgment of 13 December

2012, Application No 39630/09.

Other chapters in this volume also focus on exploring the intricacies of different regimes For example the regime of the World Trade Organisation (wto) is analysed from the point of view of discussing enforcement of wto obligations (Chapter by Professor Mavroidis) The regime of the wto is elusive and as stated by the author of the Chapter “the very notion of ‘compliance’ or

‘implementation’ is elusive One can ask different questions under this

head-ing and come up with different responses, as I will attempt to show infra If by

compliance we understand the manner in which remedies endogenous in the dsu have promoted implementation of adverse rulings by the wto judiciary, then, beyond information regarding implementation, we would also need to know whether implementation was the result of the wto remedies”

Equally fascinating is the question of corporate responsibility, giving rise to

a fundamental question whether the conduct of natural and legal persons can

be considered an “act of the State”, and thus give rise to State responsibility, i.e whether such conduct can be attributed to the State (Professor Karavias) This comprehensive Chapter investigates and analyses the following issues: “…the traditional ambit of responsibility under international law, namely responsi-bility of States and the extent to which the conduct of corporations can result

in a State being held responsible … international criminal responsibility, and assess the extent to which it is the corporation or the individuals acting on behalf of the corporation to which responsibility attaches under international

criminal law … the possibility of the corporation being per se held responsible

under international law for internationally wrongful acts perpetrated by that corporation … the shape-shifting nature of the corporation and the implica-tions this has in terms of the synergies between corporations and responsibil-ity under international law”

Dr Protopsaltis, in turn, deals with a related issue of shareholders’ injury and compensation in investor – State The question may be posed whether the arsiwa are applicable in such a context or whether perhaps international investment law is a self-contained regime There other very complex and per-tinent questions which relate to the distinguishing between shareholders and the company itself The concluding comments of this Chapter are not very en-couraging, evidencing the immense difficulties that the arbitral tribunals are faced with: “Despite the identity of solutions adopted in relation to the scope

of shareholders’ injury and compensation, important inconsistencies in the definition of the quantum of shareholders’ compensation and the failure to address successfully the risk of allocation of double compensation show the inadequacy of the current methods of enterprise valuation and the conse-quent need for further development of the law in this area while offering an argument to those contesting the legitimacy of investor – State arbitration”

The 2011 ilc Articles on the Responsibility of International Organisations, (ario) are analysed by Professor Bredimas in the context of the responsibil-ity of the International Monetary Fund (imf) for the economic impact of the application of conditionality As in the previous Chapters, there are no straightforward conclusions and there are many questions unanswered Pro-fessor Bredimas concludes that “one should conclude that the landscape of the imf’s international responsibility towards the debtor States, in the event

of their bankruptcy, is not entirely clear While, at the theoretical level, the quirements set by international law for the existence of international respon-sibility are met, the imf counters that these rules do not apply to it because there is no legal obligation on either side This is not surprising, as this position

re-of the imf is beneficial to it, since it wins either way; either by being shielded from the effects that its policies may have on the debtor-States, or by the debt-or-State paying eventually in full the loan that it has received from the imf This approach of the imf, which corresponds neither to the real nor to the legal state of affairs, follows a perception that was essentially imposed on the borrowing States, which did not exactly dare to object, mainly due to the im-plied imf sanctions” Professor Bredimas further states that there are numer-ous pertinent questions still awaiting answers: “who is competent to decide on the imf’s alleged responsibility? Certainly not the imf itself through its ability

to interpret its Statute In simple terms, the situation remains in a deadlock, which is in favour of the imf”

Finally, Dr Plakofefalos analyses the limits of responsibility: liability for age in the deep seabed The renewed interest in the legal position of the deep seabed was ignited by the 2011 Advisory Opinion of Seabed Dispute Chamber

dam-of the International Tribunal for the Law dam-of Sea (itlos) on Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area.7 The author of this Chapter analyses, in the context of the Area, the

regimes of State responsibility and liability, which from its inception has been

a very controversial topic Eventually the ilc opted for a division into a set of Articles adopted by the ilc in 2001, which dealt with the issue of prevention

of Transboundary Harm from Hazardous Activities, and the 2006 Principles on Allocation of Loss in the Case of Transboundary Harm Plakofefalos also inves-tigates the suitability of pure civil liability regimes in the context of damage in the seabed, such as for oil pollution The not very satisfactory set of Principles that the ilc has adopted on the subject of liability, has led to a difficulty in

7 Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to

Activi-ties in the Area, itlos, Seabed Disputes Chamber, Advisory Opinion of 1 February 2011, [2011] itlos Rep 10.

identifying the rules that are applicable in cases that go beyond the limits of responsibility Plakokefalos opines that “[t]he conclusion that should be drawn

from this analysis is that instead of searching for ad hoc solutions every time

a problem goes beyond responsibility, it would be better if more general rules were developed by the States so as to address these issues These rules could be based on the Principles of the ilc but they could also go further Unless such rules are established the problem will persist and will re-appear in a different context each time”

The present book is a unique study of the very important questions, both

in theory and in practice, of the application and suitability of rules of sibility in various legal regimes In some instances, there is a very visible lack

respon-of uniform application; in some the classical rules on State responsibility are perhaps unsuitable The interesting question is whether there is a necessity or even possibility of strict implementation of the arsiwa and ario and if not, are such deviations unjustified or simply signify the development of rules of responsibility, as they are a living instrument It may be that certain divergent decisions of courts and tribunals (although contributing to the fragmentation

of the norms on responsibility), are unavoidable in a rich and diversified national legal environment

inter-Subjects of Responsibility: from States to Non-State

Actors and Beyond

∵

State Responsibility for Acts of Non-State Actors

Constantine Antonopoulos

I Introduction

The concept of “non-State actors” is very wide and comprises a variety of entities: individuals (i.e natural persons), groups of individuals, transna-tional corporations, inter-governmental international organizations and non- governmental organizations (ngos) All these entities share a common feature: they are not institutionally part of the apparatus of a State At the same time inter-governmental international organizations enjoy international legal per-sonality; individuals also enjoy a measure of international legal personality (for instance, they are criminally liable for perpetrating crimes under inter-national law and are beneficiaries of the protection of human rights on the international plane) Transnational corporations have their foreign investment protected and their claims may be enforceable by way of institutionalized ar-bitration in which they are litigants instead of a State exercising diplomatic

protection on their behalf (see icsid) Finally, ngos, though active and

ubiq-uitous participants in international life, have an uncertain status in terms of legal personality under international law

In the context of the law of responsibility for internationally wrongful acts, namely, violations of international law, intergovernmental organizations as subjects of the law have the capacity to incur responsibility directly upon at-tribution of a breach to them.1 Individuals or groups of individuals have the capacity to bear only criminal responsibility under international law while it

is a matter of controversy whether transnational corporations have the ity to incur either criminal or civil responsibility on the international plane.2

capac-1 See ilc Articles on the Responsibility of International Organizations in: unga, “Report of

the International Law Commission to the General Assembly”, A/66/10 (2011), Chapter v, para

87 (hereinafter ario).

2 J Crawford and S Olleson, “The Nature and Forms of International Responsibility”, in: M

Evans (ed.), International Law (Oxford: Oxford University Press, 2010, 3rd edn.), Chapter

xv, 441, at 445 See Flomo v Firestone Natural Rubber Co llc, Court of Appeals, 7th Circuit, Decision of 11 July 2011, 43 F 3d 1013; Doe v Exxon Mobil Corp., Court of Appeals, District of Columbia Circuit, Decision of 8 July 2011, 654 F 3d 11; Bauman v Daimler-Chrysler, Court of

But in the particular context of State responsibility, the term “non-State actors” appears to be limited largely to the question of whether and under what condi-tions the acts of natural persons may give rise to the international responsibil-ity of a State.

Article 1 of the 2001 International Law Commission (ilc) Articles on the Responsibility of States for Internationally Wrongful Acts (arsiwa)3 stipulates that “[e]very internationally wrongful act of a State entails the international responsibility of that State”.4 Moreover, under Article 2 of the arsiwa an inter-nationally wrongful act consists in a violation (by way of an act or omission)

of an international legal obligation of the State (under a treaty or customary law) which is attributable to this State Therefore, the responsibility of States for internationally wrongful acts is governed by the basic principle that a State

is liable only for its own acts Consequently, the attribution of an act or sion to a State is premised on its own conduct and, as a matter of principle, a State has responsibility only for acts of its own organs or agents5 and not for acts of private individuals or non-State actors or entities.6 The arsiwa do not introduce a normative framework of shared responsibility in the sense of ap-portioning responsibility among a plurality of States for the commission of a single internationally wrongful act Even though the arsiwa address factual contingencies in which a State may incur responsibility even though it itself has not perpetrated the wrongful act (in cases of aid or assistance, direction and control and coercion of another State) this responsibility appears to be

omis-Appeals, 9th Circuit, Decision of 18 May 2011, 644 F.3d 909 In all these cases before the US courts, the liability of transnational corporations for violations of international law under the Alien Tort Statute (ats) was admitted; reported in J Crook, “Contemporary Practice of the United States Relating to International Law: US Courts of Appeals Uphold Corporate

Alien Tort Statute Liability”, ajil 105/4 (2011): 775, at 799 See also J Crook, “Contemporary

Practice of the United States Relating to International Law: US Government Supreme Court

Brief Backs Corporate ats Liability”, ajil 106/2 (2012): 360, at 382.

3 See ilc Articles on the Responsibility of States for Internationally Wrongful Acts in: unga,

“Report of the International Law Commission to the General Assembly”, A/56/10 (2001), Chapter iv, para 76 (hereinafter arsiwa).

4 See also Factory at Chorzów (Germany v Poland) (Jurisdiction), Judgment of 26 July 1927, pcij

Series A No 9, at 21.

5 A classical example of State organ the acts of which are attributable to the State are its armed

forces See Case Concerning Armed Activities on the Territory of the Congo (Democratic

Repub-lic of the Congo v Uganda) (Merits), Judgment of 19 December 2005, [2005] icj Rep 168, at

242, para 213: “The conduct of the updf as a whole is clearly attributable to Uganda, being

the conduct of a State organ” See also J Crawford (ed.), Brownlie’s Principles of Public

Interna-tional Law (Oxford: Oxford University Press, 2012, 8th edn.), at 543.

6 Crawford and Olleson, supra note 2, at 455.

“individualized” by reference to the hypothesis that the act would be ful if perpetrated by the State not actually committing the act.7 Be that as it may, the current discussion of shared responsibility confines this type of State responsibility among subjects of international law recognized as such by the law This appears to exclude groups of natural persons, restricting their respon-sibility under international law only to the context of criminal responsibility.8 The responsibility of States for acts of non-State actors is admissible in spe-cific contingencies, in which a particular line of conduct of a State towards the activities of these persons or entities results to its attribution to the State.

wrong-II The Legal Framework

The rules governing the responsibility of States for acts of non-State actors are provided in customary international law and the content of the law is found in the arsiwa and the jurisprudence of the International Court of Justice (icj) and arbitral tribunals Under the law in force, a State bears responsibility for the acts of non-State actors in the following situations:

1 De Facto State Organs

Non-State actors or entities have been “upgraded” or “elevated” to de facto State

agents or organs because they are under the absolute dependence and control

of a State In this contingency the acts of such persons or entities are attributed

to the State in the same manner as the acts of de jure State organs or agents.9

In the Nicaragua case10 the icj dealt with the relationship between the usa and the contras guerrilla force by formulating the issue in these terms: “What the Court has to determine … is whether or not the relationship of the contras

to the United States Government was so much one of dependence on the one

side and control on the other that it would be right to equate the contras, for

note 1, appear closer to introducing a shared responsibility normative framework See

generally A Nollkaemper and D Jacobs, “Shared Responsibility in International Law: A

Conceptual Framework”, mjil 34/2 (2013): 359, at 389–393; A Nollkaemper, “Dual tion: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica”, jicj 9/5 (2011):

Attribu-1143.

8 See J Hessbruegge, “The Historical Development of the Doctrines of Attribution and Due

Diligence in International Law”, jilp 36/4 (2004): 265.

10 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua

v usa) (Merits), Judgment of 27 June 1986, [1986] icj Rep 14 (hereinafter Nicaragua case).

legal purposes, with an organ of the United States Government, or as acting on behalf of that Government”.11 It went on to rule on the basis of the evidence available that “…the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but it is insuf-ficient to demonstrate their complete dependence on United States aid … It

is a fortiori unable to demonstrate that the contra force may be equated for legal purposes with the forces of the United States”.12 Moreover, in the Bosnian Genocide case the Court expressly drew a distinction between non-State actors acting as de facto State organs and non-State actors acting under the instruc- tions, direction or control of a State The issue before the Court was whether the

atrocities perpetrated by the Bosnian Serbs in Srebrenica in July 1995, which the Court ruled as amounting to commission of genocide under the 1948 Geno-cide Convention, could be attributed to Serbia It stated the law in force in the following terms:

This question has in fact two aspects, which the Court must consider separately First, it should be ascertained whether the acts committed

in Srebrenica were perpetrated by organs of the Respondent [namely, Serbia], i.e., by persons or entities whose conduct is necessarily attribut-able to it, because they are in fact instruments of its action Next, if the preceding question is answered in the negative, it should be ascertained whether the acts in question were committed by persons who, while not organs of the Respondent, did nevertheless act on the instruments of, or under the direction or control of, the Respondent.13

The Court then proceeded to identify de facto States organs as “…persons,

groups of persons or entities [that], may for purposes of international sibility, be equated with State organs even if that status does not follow from

respon-internal law, provided that in fact the persons, groups or entities act in plete dependence’ on the State of which they are ultimately the instrument”.14

‘com-11 Ibid., at 69, para 109.

12 Ibid., at 62–63, para 110.

13 Case Concerning Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits), Judgment

of 26 February 2007, [2007] icj Rep 43, at 201, para 384 (hereinafter Application of the

Genocide Convention case).

14 Ibid., at 201, para 392 (emphasis added); the Iran–US Claims Tribunal appears to have

adopted a similar approach towards attributing acts of non-government actors to Iran on

the basis of the de facto links of these actors to the government by evaluating the legal tus of the actors and the existence of actual supervision by the Iranian government See

sta-2 Instructions, Direction and Control of a State over Acts of Private

Persons15

In the jurisprudence of the icj this control must be “effective control” in order

to give rise to the responsibility of the State The Court reached this finding in

Nicaragua where it ruled that the US assistance to the contras and its general

control over them were not sufficient in default of further evidence to attribute their acts violating human rights and humanitarian law to the US government

By contrast “[f]or this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective con-trol of the military and paramilitary operations in the course of which the al-

leged violations were committed”.16 Moreover, in the Bosnian Genocide case the Court, having found that the Bosnian Serbs did not constitute a de facto

organ of Serbia proceeded to determine whether Serbia exercised effective control over them The Court explained that the

test thus formulated differs in two respects from the test … to determine whether a person or entity may be equated with a State organ even if not having that status under internal law First, in this context it is not nec-essary to show that the persons who performed the acts alleged to have violated international law were in general in a relationship of “complete dependence” on the respondent State; it has to be proved that they acted

in accordance with the State’s instructions or under its “effective control”

It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having commit-ted the violations.17

In this respect, the Court declined to uphold the ruling of the icty Appeals

Chamber in the Tadić case where the ad hoc Tribunal applied the test of

“over-all control” that dispenses with the need to evaluate control of a State over

Schering Corporation v The Islamic Republic of Iran, Iran–US Claims Tribunal, Award of 16

April 1984, Award No 122-38-3, Iran–US Claims Tribunal Reports5/I (1984): 361, at 361–370.

15 Article 8 of the arsiwa, supra note 3.

16 Nicaragua case, supra note 10, at 64–65, para 115; see also ibid., at 65, para 116, where the Court found that the acts of the contras were not attributable to the usa.

17 Application of the Genocide Convention case, supra note 13, at 208, para 400; see also ibid.,

at 211–215, paras 408–415 where the Court ruled that the acts of the Bosnian Serbs were not attributable to Serbia on the basis of “effective control”.

each specific operation of a non-State actor;18 the Court took the view that the determination of State responsibility on the part of Serbia did not constitute

an indispensable finding to determine individual criminal responsibility by an international criminal tribunal.19

The position of the icj on “control” being “effective control”, namely, thing more substantial, directly effectual and influential than general control

some-is in line with a similar approach adopted by the Iran–US Claims Tribunal Even though the constituent instrument of the Tribunal (the 1981 Iran–US Settlement Declaration) identified in Article vii (3) “Iran” for the purposes

of exercising its jurisdiction, inter alia, “any agency, instrumentality or entity

controlled by the Government of Iran” it declined to uphold automatically attribution to Iran of any act of such an entity occurring in the context of gen-eral control by the government of Iran.20

3 Approval and Adoption by a State of Acts of Private Persons

or Entities

In the US Diplomatic and Consular Staff in Tehran case the Court ruled that

the act of overrunning of the US Embassy in Tehran by demonstrators and the seizure as hostages of the US diplomatic staff could not be as such attributed

to the Iranian government because the demonstrators were neither State gans nor did they carry out a specific government act on behalf of the State.21

or-18 Prosecutor v Dusko Tadić, icty, Appeals Chamber, Judgment of 15 July 1999, Case No 94-1-A, para 145 A similar approach appears to be adopted by the ECtHR; in Loizidou v

IT-Turkey, ECtHR, Judgment of 18 December 1996, Application No 15318/89, para 56, where

the Court appears to have taken the view that the effective control exercised by Turkey over northern Cyprus would entail both that every person in this area was subject to the jurisdiction of Turkey and that the acts of the “Turkish Republic of Northern Cyprus”

would be attributed to Turkey as acts of a de facto State organ Moreover, in Ilascu and

Others v Moldova and Russia, ECtHR [GC], Judgment of 8 July 2004, Application No

48787/99, paras 392–394, the Court though not expressly addressing the question of bution of the “Trans-Dniestria” separatist authorities to Russia, ruled that the fact of effec- tive authority or decisive influence by Russia would engage its responsibility for breaches

attri-of the echr.

19 Application of the Genocide Convention case, supra note 13, at 209–210, paras 403–404.

20 Tippetts, Abbett, McCarthy, Stratton v tamms-affa Consulting Engineers of Iran, Iran–US Claims Tribunal, Award of 22 June 1984, Award No 141-7-2, Iran–US Claims Tribunal Re-

ports 6/II (1984): 219, at 225; Flexi-Van Leasing, Inc v The Islamic Republic of Iran, Iran–US

Claims Tribunal, Award of 13 October 1986, Award No 259-36-1, Iran–US Claims Tribunal

Reports 12/ iii (1986): 335; Ch Brower and J Brueschke, The Iran-United States Claims bunal (The Hague: Martinus Nijhoff, 1998), at 448–450.

Tri-21 Case Concerning US Diplomatic and Consular Staff in Tehran (usa v Iran), Judgment of

24 May 1980, [1980] icj Rep 3, at 29–30, paras 57–60 (hereinafter Tehran Hostages case).

However, the responsibility of Iran for the acts of the demonstrators was lished at a later stage when the Iranian government approved of and adopted the occupation of the Embassy premises and the captivity of the US diplomatic staff as its own.22 The position of the icj is reflected in Article 11 of the arsiwa.

estab-4 Exercise of Elements of Government Authority in the Absence of or

Inadequate Function of State Authorities and in Circumstances That Warrant the Exercise of This Authority23

In Yeager v Iran the Iran–US Claims Tribunal ruled that the immigration,

customs and other similar acts that had been carried out by the ary Guards at the Tehran airport in the immediate aftermath of the Islamic revolution were attributable to Iran The Tribunal reasoned that even though these functions were not authorized by the Iranian government they objec-tively consisted in the exercise of elements of governmental authority in the absence of official authorities of the State “in operations of which the new Government must have had knowledge and to which it did not specifically object”.24

Revolution-5 Delegation of Government Authority

Article 5 of the arsiwa provides that the conduct of a non-State actor (i.e “a person or entity which is not the organ of the State”) is to be considered as an act of the State if the non-State actor “is empowered by the law of that State to exercise elements of governmental authority” and it “is acting in that capacity

in the particular instance” In the Commentary to Article 5 arsiwa, the ilc

refers to Hyatt International Corporation v Iran in which the Iran–US Claims

Tribunal dealt with an autonomous foundation established by the State that held property for purposes of charity and had the power to identify property to

be expropriated The Tribunal ruled that this foundation was a public and not

a private entity for the purposes of its jurisdiction, but as the Commission has stated “with respect to its administration of allegedly expropriated property, it would in any event have been covered by article 5”.25

22 Ibid., at 33–36, paras 69–75, especially para 73.

23 Article 9 of the arsiwa, supra note 3.

24 Kenneth P Yeager v The Islamic Republic of Iran, Iran–US Claims Tribunal, Award of 2 November 1987, Award No 324-10199-1, Iran–US Claims Tribunal Reports 17/IV (1987): 104,

6 A State Violates the Obligation of “Due Diligence” with Respect to

Activities of Non-State Actors That Emanate from Its Territory or Territory under Its Jurisdiction

This obligation arises from the principle that no State may knowingly allow its territory to be used or be the source of acts injurious to other States.26 The proof of attribution in this contingency is made redundant because it con-cerns an omission to act in accordance with a primary obligation and it may

be established on the fact that a State possesses the requisite infrastructure

operated by its agents or de facto agents or private parties to which

govern-ment authority was delegated by law in order to prevent such injurious acts Thus, due diligence is the primary obligation the breach of which (failure to act or omission) ensures the observance of other primary obligations (either based on treaty or customary law) The precise content and extent of due dili-gence varies in conjunction with specific obligations The ilc deliberately re-frained from including due diligence in the arsiwa because this would entail examination of the content of primary rules; nevertheless, it did point out that there is a presumption that any primary rule contains a qualification of due diligence.27

In the context of transboundary harm from hazardous activities the ilc has adopted the view that the duty of due diligence involved does not extend to guaranteeing that significant harm is to be totally prevented if it is impossible

to do so Furthermore the ilc stated that the standard of due diligence to sess the conduct of a State would be that which would be deemed “appropriate and proportional to the degree of risk of transboundary harm in the particular instance”.28 Moreover, the Seabed Disputes Chamber of the International Tri-

as-bunal of the Law of the Sea (itlos) ruled in its Advisory Opinion in the sponsibilities and Obligations of States with respect to Activities in the Area that

Re-due diligence is a “variable concept” and the standard it may set may change

as a result of scientific and technological developments as well as the risks involved in a particular activity.29

26 Corfu Channel case (UK v Albania) (Merits), Judgment of 9 April 1949, [1949] icj Rep 4,

at 22.

27 unga, “Report of the International Law Commission on the Work of its 51st Session”,

A/54/10 (1999), at 86; Hessbruegge, supra note 8, at 275.

28 ilc Draft Articles on the Prevention of Transboundary Harm from Hazardous ties, in: unga, “Report of the International Law Commission to the General Assembly”, A/56/10 (2001), Chapter v, para 97.

Activi-29 Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to

Activities in the Area, itlos, Seabed Disputes Chamber, Advisory Opinion of 1 February

2011, [2011] itlos Rep 10, paras 111–117.

In human rights field the duty of due diligence has been upheld in quez-Rodriguez in which the Inter-American Court of Human Rights inter-

Velas-preted the obligation introduced in Article 1(1) of the American Convention

of Human Rights to respect and ensure the exercise of the rights enshrined in the Convention The Court ruled that the obligation to “ensure” the exercise of these rights gave rise to the duty of contracting States to organize the govern-mental infrastructure in such a way so as to ensure “free and full enjoyment” of the rights and prevent, investigate and punish their violation; this obligation

to “ensure” is not fulfilled solely by the existence of “a legal system designed to make it possible to comply with this obligation – it also requires the govern-ment to conduct itself so as to effectively ensure the free and full exercise of human rights”.30

The icj has dealt with the duty of diligence in a number of disputes volving alleged breaches of international obligations in a variety of contexts

in-In Corfu Channel the Court ruled at the outset that the mere existence of the

source of an injurious act (in this case the mines) in the territory of Albania was not sufficient to attribute this act to the State, for the control exercised by

a State over its territory as a result of sovereignty does not establish prima facie

knowledge of every activity taking place therein.31 After establishing edge by Albania of the laying of mines in its territorial sea,32 the Court ruled that the responsibility of Albania lay in its failure to notify the existence of

knowl-a minefield in its territoriknowl-al seknowl-a to third-Stknowl-ate shipping In the opinion of the Court, this obligation rested on three general principles, namely, elementary considerations of humanity, the freedom of maritime communication and

“every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”.33 But the Court also took account of the particular factual circumstances of the case in order to confirm its legal finding It acknowledged that if the mines had been laid at the last possible moment, namely less than twenty-four hours before the UK warships struck them, it would have been difficult or even impossible to issue a general no-tification to third-State shipping But, as the incident took place at a time by which the Albanian authorities could have had knowledge of the existence of the mines as a result of their close surveillance of the Corfu Strait, Albania did

not observe its duty of due diligence.34 In US Diplomatic and Consular Staff in

30 Velasquez-Rodriguez v Honduras, IACtHR, Judgment of 29 July 1988, Series C No 4, paras

Tehran the Court ruled that the acts of the demonstrators who took over the

premises of the US embassy and held its staff hostage could not be imputed

per se to the government of Iran However, Iran bore responsibility because of

its failure to observe its obligation under the Vienna Convention on Diplomatic Relations (1961) to protect the inviolability of the persons and premises of an-

other State’s diplomatic mission.35 In Congo v Uganda the Court dealt in the

context of the first counterclaim of Uganda with the allegation that the Congo had violated its obligation of due diligence (or duty of vigilance) by failing to prevent the action of dissident armed bands against Uganda from its territory The Court ruled that the existence and toleration of armed groups on Congo-lese territory could not be assimilated with active support to these groups In addition, the Court took into account the inimical geographical terrain where the groups operated and the material inability of the Congolese (as well as the former Zairian) government to effectively control that part of the territory of the State Thus, the Court concluded that it could not uphold the allegation of

breach of the duty of vigilance on the part of the Congo.36 Moreover, in nian Genocide the Court dealt with the obligation to prevent genocide which is

Bos-enunciated in the 1948 Genocide Convention.37 In the course of its reasoning the Court made some statements of principle regarding the duty to prevent (due diligence) even though it made it clear that it did not intend introduce

a general framework of universal application on the duty of due diligence; it observed that “the content of duty to prevent varies from one instrument to another, according to the wording of the relevant provisions, and depending

on the nature of the acts to be prevented”.38 Then the Court analyzed the tent of the duty to prevent in relation to the crime of genocide It stated at the outset that this duty was an obligation of conduct and not of result; hence, a State did not have the obligation to succeed in preventing genocide “whatever the circumstances” but was under the obligation to “employ all means reason-ably available” to it to prevent the commission of the crime.39 Thus, failure

con-to achieve the desired result does not give rise con-to responsibility; by contrast, responsibility arises in case of manifest failure to take all steps within its power that would contribute to preventing genocide because “in this area the notion

35 Tehran Hostages case, supra note 21, at 30–33.

36 Case Concerning Armed Activities on the Territory of the Congo, supra note 5, at 268.

Geno-cide (adopted 9 December 1948, entered into force 12 January 1951), 78 unts 277.

38 Application of the Genocide Convention case, supra note 13, at 220–221.

39 Ibid., at 221.

of ‘due diligence’, which calls for an assessment in concreto, is of critical

impor-tance Various parameters operate when assessing whether a State has duly discharged the obligation concerned”.40 The Court proceeded to identify those parameters in relation to the specific obligation to prevent genocide and found

of particular importance the capacity to influence (within the limits of the law) the perpetrators on the basis of (a) the geographical distance between the State concerned and the scene of the crime and (b) the strength of politi-cal or other links between the State and the perpetrators.41 The essence of due diligence lies, therefore, in the application of all means at the disposal of the State even though such application may be proved on the basis of evidence to

be futile; in other words a State must not be inert even in the knowledge that its measures will in all probability be ineffective to prevent the injurious act.42 Even though the Court found that the duty to prevent genocide would give rise

to responsibility only when the crime was actually committed (see Article 14(3)

of the arsiwa) it recognized that a State was not absolved from responsibility

if it remains inactive until commission of the crime commences where there

is a serious risk of its commission In such a contingency the State is under the obligation to employ the means available to it to prevent the crime, other-

wise the substance of the obligation would be negated.43 Finally, in Pulp Mills

the Court ruled that both litigants (Argentina and Uruguay) were under an obligation of due diligence to act through the Administrative Commission of the River Uruguay (caru) with respect to adopting measures to preserve the ecological balance of the river by virtue of Article 36 of the Statute of the River Uruguay of 1975.44

The rationale underlying this legal framework is to avoid as a matter of principle the facile attribution of responsibility to States for acts of non-State actors by introducing a high threshold of burden of proof with respect to the substance of the conduct of States towards the acts of non-State actors This framework has been the subject of criticism with respect to the direction or control of the State over the acts of non-State actors, the gist of which is the extreme difficulty that approaches the bounds of impossibility to attribute re-sponsibility for acts of private actors to a State The issues arising from the existing framework of attribution concern the determination (or designation)

of private individuals as de facto State organs, the content and the scope of effective control, the propriety of distinguishing between de facto State organs and effective control, the authorised exercise (or outsourcing) of government functions and the extent of due diligence.

III De Facto State Organs

The concept of a de facto State organ aims at establishing the responsibility of

a State on the identity of the actors Their assimilation to State organs results in the automatic attribution of their acts to the State The possibility of non-State

actors being classified as de facto agents of a State is not expressly provided as

a distinct class of persons in Article 4 of the arsiwa The ilc Commentary

to Article 4(2) of the Articles is implicit of this category by stating that a State cannot escape responsibility for the acts of an entity that acts as its agent by

denying this status in its municipal law Neither did the Court in the Nicaragua case state explicitly the distinction of non-State actors in de facto organs of

the State and private individuals over which the State exercised effective

con-trol.45 Be that as it may, the Court has subsequently in the Bosnian Genocide case expressly and emphatically introduced de facto State organs as a distinct

category It comprises individuals or organizations that are not formally State

organs according to municipal law, but acquire the status of de facto State

or-gans as a result of the absolute dependence on and control of the State This requires an extremely high burden of proof in factual circumstances involving

the activities of guerrillas (the Nicaragua or the Congo v Uganda settings) or a

de facto entity such as the Bosnian Serb Republic The Judgment of the Court

in Nicaragua appears to introduce as criterion that the existence and

activi-ties of a group of private actors is completely depended upon the support of

a State, whereas, the Bosnian Genocide Judgment requires “absolute control”

By contrast the acts of an organized resistance movement that “belongs to a party” to an international armed conflict in the sense of Article 4A of the 1949 Third Geneva Convention would be attributable to a State only on the basis

of allegiance manifested towards it without evidence of “complete dence” being necessary.46 Thus, the high burden of proof for a specific group

depen-45 This distinction does not become immediately apparent in the Judgment on the Merits

See Nicaragua case, supra note 10, at 62–63, para 110, and 64–65, para 115.

46 See International Committee of the Red Cross, “Commentary to Article 4 Geneva vention iii”, (icrc, 2018), available at: <http://www.icrc.org/ihl.nsf/COM/375-590007?

Con-OpenDocument> (last accessed on 1 March 2018).

of non-State actors to be assimilated to State organs appears to be the rule that

is mitigated only with respect to particular non-State actors by way of express

stipulation that has the position of lex specialis Moreover, the determination

of non-State actors as de facto organs of a State presupposes the exclusion of their being de jure organs, a matter that it is established by reference to express provision in the municipal law of the State in question.47 In Bosnian Genocide the Court found that the establishment of de facto organ status is an “excep-

tional” status and requires evidence of complete dependence in particular cumstances (“the reality of the relationship between the person taking action, and the State to which he is so closely attached so as to appear nothing more than its agent”) and the criterion suggested is whether non-State actors possess

cir-a mcir-argin of independence of cir-action, however ncir-arrow this might be; in other words, if the slightest independence of action is established then a non-State

actor fails to qualify as a de facto organ of the State.48

IV Effective Control

The instructions, direction and effective control of a State over the acts of State actors was considered for a long time to be identical with their position

non-as de facto State organs Their treatment non-as two distinct categories in the

dis-senting opinion of Judge McDonald to the Interlocutory Decision of the Trial

Chamber of the icty in Tadić was a minority view49 – apparently, a minority

of one at the time It was the Judgment of the icj in Bosnian Genocide that

insisted upon this distinction as having been established in law.50 Instructions, direction and effective control over the activities of non-State actors concern

private individuals or entities that do not constitute either de jure or de facto

State organs State responsibility is established by way of attribution as a result

of the acts of instructing, directing and effectively controlling specific acts of non-State actors on the part of the State and not the entirety of their activities

In other words, the responsibility of a State is premised not on the identity of the private actors and the attribution of the totality of their acts but on the direction and control over certain of these acts and these acts alone that are ultimately attributed to the State

47 Application of the Genocide Convention case, supra note 13, at 202–204, paras 385–389.

48 Ibid., at 205–206 paras 392–394; M Milanović, “State Responsibility for Acts of Non-state Actors: A Comment on Griebel and Plücken”, ljil 22/2 (2009): 307, at 315–319.

49 Prosecutor v Dusko Tadić, icty, Trial Chamber, Judgment of 7 May 1999, Case No IT-94-1-T, paras 288 et seq.

50 Application of the Genocide Convention case, supra note 13, at 207, para 397.

But what constitutes “effective control”? The answer to the question quires a high threshold of burden of proof as may be deduced from the posi-tion adopted by the icj towards the very close connection of the Nicaraguan

re-contras and the Bosnian Serbs to, respectively, the usa and Serbia An tion may be the Judgment of the icj in the Congo v Uganda case, in which

indica-the Court ruled that indica-the activities of indica-the mlc guerrilla group were under indica-the exclusive control of its leadership and not Uganda and that the use of the ma-terial assistance by the latter was not under its control.51 A more interesting position as to what constitutes “effective control” was advanced by the Hague

Court of Appeal in the Nuhanović and Mustafić – Mujić et al cases concerning

the events at Srebrenica in 1995 The relevant criterion of “effective control” was not only the issuing of orders to non-State actors but the competence (and capacity) to prevent the commission of an internationally wrongful act Even though the specific judgment concerned the exercise of control by the gov-ernment of The Netherlands over the Dutch contingent (the Dutchbat) of the unprofor in Bosnia, the criterion it has introduced may be generally applied

in cases of control by a State over specific acts of a non-State entity.52

The concept of “effective control” as was articulated by the icj has been the object of criticism.53 Critics express the view that it is nearly impossible to establish the responsibility of a State on the basis of the formula expressed in the Court’s Judgments and suggest either the attribution of acts of non-State actors to a State on the basis of any link of them to it or the adoption of the

concept of “overall control” which was introduced by the icty in the Tadić

case In spite of the difficulties surrounding the concept of “effective control”

as a result of the high burden of proof required by the icj it is submitted that the position of the Court is sound

First, it is in conformity with the basic principle that a State bears sibility only for its own acts, something that the concept of “overall control” approaches with a degree of flexibility in that it seeks to establish attribution

respon-51 Case Concerning Armed Activities on the Territory of the Congo, supra note 5, at 226,

para 160.

52 T Dannenbaum, “The Hague Court of Appeal on Dutchbat at Srebrenica Part 2:

Attribu-tion, Effective Control and the Power to Prevent”, (EJILTalk!, 10 November 2011), available

at: <http://www.ejiltalk.org/the-hague-court-of-appeal-on-dutchbat-at-srebrenica-part-2 -attribution-effective-control-and-the-power-to-prevent-2/www.ejiltalk.org> (last ac- cessed on 1 March 2018).

53 See, for instance, A Cassese, “The Nicaragua and Tadić Tests Revisited in Light of the icj Judgment on Genocide in Bosnia”, ejil 18/4 (2007): 694; J Griebel and M Plücken, “New

Developments Regarding the Rules of Attribution? The International Court of Justice’s

Decision in Bosnia v Serbia”, ljil 21/3 (2008): 601.