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 The responsibility of states for the acts or omissions of private
persons or entities that are not formally organs of a state, hinges on the
establishment of attribution to an outside state.1
By nature, states are abstract entities, and cannot act themselves, consequently,
internationally wrongful conduct must involve some action or omission by an
individual or a group.2
For acts to constitute an ‘internationally wrongful act’, it must be
attributable to an outside state. Attribution is usually determined by
international courts and tribunals on the question of ‘control’ exerted by the
outside state. It then follows that ‘control’ must be defined in order to
establish this attribution towards the state. The ICJ has created two ‘control’
tests, however, these have been criticised by other international courts and tribunals
such as the International Tribunal Appeals Chamber (ICTY) and the European
Court of Human Rights (ECtHR). In conjunction with their criticism of the ICJ,
they have created alternative tests in pursuit of what they deem a more
pragmatic approach to ‘control’. There will be a constructive discussion and
evaluation of each respective test produced by the three international courts.

It will subsequently be concluded that the ICJ’s tests for ‘control’ are appropriate
to the attribution of state responsibility and the failure of the other tests
expose this.  The Attribution of International State Responsibility It must first be established that state responsibility arises when a
state commits an internationally wrongful act against another state, and as a
result of this, international responsibility is established between the two
parties. This is confirmed by the Permanent Court of International Justice (PCIJ)
who asserted that upon an internationally wrongful act, international
responsibility is established “immediately
as between the two states”.3
 Overarching this area of the law are the customary rules4
set out in The Draft articles on Responsibility of States for Internationally
Wrongful Acts5
(ARSIWA). ARSIWA is a set of secondary rules6
which set out general instances in which the state would be considered
attributable to wrongful acts or omissions and, detail the legal repercussions
that follow. By virtue of the nature of customary rules, these are not legally
binding, despite this, the standing of these articles is strong and, generally
perceived as an expression of the codification of pre-existing international
law.  It must then be questioned what constitutes an ‘internationally wrongful
act’ in order to engage this state responsibility. This is addressed by Article
2 of the ARSIWA which states: “There 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.”7 The PCIJ echoes this in the Phospates
in Morroco Case,8
in which it confirms that  these are the
two essential elements to determine the existence of an internationally
wrongful act of the state. The first condition will be the focal point of this
argument.  As previously mentioned, attribution is centred around ‘control’ by the outside
state, however, ‘control’ presents “the
most cited example of the fragmentation of international law”9.

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There is a rather confused notion of ‘control’ within international courts and
tribunals, especially when concerning attribution to an outside state for any
acts or omissions by a private actor. The relevant rules can be found in
articles 4-8 and article 11 of ARSIWA and, if there is no lex especialis then they will be applicable.10
 Private actors will rarely be held to officially belong to an outside
state as de jure organs under domestic law and it is widely recognised that it
is difficult to establish that the outside state directly acted in any decidedly
wrongful activities of the private actor. The outside power will more than
often highlight the independence of the private actor to enforce that they are
responsible for their own acts or omissions.11
To address this, the ICJ, the ICTY, and the ECtHR, have all put forward their
own tests for the attribution of state responsibility for private actors or
entities who are not organs of a state. This further intensifies the confusion as
to which is most appropriate and applicable.  The ICJ Tests The origins of the ICJ tests lie in the determination of both the Nicaragua12
and the Bosnian Genocide13
cases. The ICJ approach advocates that there is an interlinking relationship
between both ‘dependence’ and ‘control’14.

More specifically, that ‘control’ is derived from ‘dependence’ or conversely, ‘dependence’
“creates the potential for control”.15
From this principle, the ICJ derived distinct ‘degrees’ of control16
which have resulted in it’s two tests; very simply put, the ‘strict control’
test concerns complete dependence on the outside state and, comparatively, the
‘effective control’ test requires less dependence on the outside state.  The ‘strict control’ test The leading case for this test is the Nicaragua case17,
which concerned the determination of state responsibility of the USA with
regard to the militant acts of the Contras who were an armed group acting
against Nicaragua. In this case it
was questioned whether: “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 legal
purposes, with an organ of the United States Government, or as acting on behalf
of that Government”18 This led to an examination of whether there was an assimilation between
acts of both parties which would render the conduct applicable to the state.   Three elements were specified to establish ‘strict control’: (1) the complete
dependence on the outside state, (2) this complete dependence must be evidenced
in all activities of the private actor and (3) the outside state must have
acted upon the ‘potential for control’ mentioned previously. Evidently, the
burden of proof to establish a group as a de facto organ of the outside state is
exceedingly high. Not only does there have to be ‘potential’ for control, but
it additionally has to be demonstrated that this control has been used
extensively; these two required levels make it particularly rigorous to
establish international responsibility under this test. It is a testament to
this conclusion that in the Nicaragua
case this high threshold for was still not met despite, the prima facie
broad involvement of the USA in the acts the Contras, demonstrated by their
contributions to the organisation, training and planning of tactics.19
This refuted the applicant’s argument that attributed the USA to the activity
of the Contras in their entirety.20
 Regarding the first requirement of ‘complete dependence’ on the outside
state, there must be an examination of ‘complete’ as this entails that ‘complete
control’ is required, and the coupling of these two words demands a high
threshold. Whilst currency, nationality, similar politics, military or economic
relations between the private actor and the outside state don’t satisfy this high
requirement, if the acts of the outside state constitute assistance which is intrinsically
vital to the activity of the private actor’s activity and cannot function in
their absence then complete dependence could be established.21
Therefore, any evidence of independence on the part of the private actor would automatically
rule out the ‘complete’ control of the outside state. With regard to Nicaragua on this point, it was found
that there was no complete dependence of the USA because, upon the cessation of
US military assistance the Contras continued to operate.22 The second requirement detailing that dependence must be across all
forms of the private actor’s activities, is to be taken literally. It must be
demonstrated that the private actor was provided with strong and material support
from the outside state on all fronts and not just where the private actor needed
assistance most.23 Finally, regarding the third requirement that the outside state must
have acted upon the ‘potential’ to control the secessionist entity, this more
practical dimension of the test demands that a strong degree of control must
have actually been exerted by the outside state, rather than just obtaining
this control.  It is clear that at every turn of the ICJ ‘strict control test’ there is
a highly demanding evidential burden. As per Azarov, it is argued that this stringency makes many attribution
cases borderline impossible to prove.24
This stance is supported by the Bosnian Genocide case which stated:  ‘to
equate persons or entities with state organs when they do not have that status
under internal law must be exceptional’ 25 Conversely, arguably the challenge of fulfilling this test ensures that
the equation of a de facto organ and a state is not taken lightly as the
consequences of breaching an international obligation could result in extensive
repercussions. Moreover, this equation would also contradict principles such as
Article 1 of ARSIWA26
which explicitly asserts that states are simply responsible for their own
conduct. Considering the omnipotent nature of international law, there is little
desire to undermine themselves by conflicting this principle. Therefore, it is
appropriate that only in extremely necessary circumstances is this test is
engaged.  The ‘Effective Control’ Test in comparison If the private actor cannot be defined as a de jure organ or de facto
organ (under the strict control test) then it falls to the ‘effective control’
test to determine state responsibility. Article 8 of ARSIWA27
is the applicable rule, and rather than attribution fixating on whether there
is a legal relationship between the state and the private actor, there is more
of a focus on the facts of a case.28
This test is subsidiary to the ‘strict control’ test, however, due to the
difficulty of establishing the ‘strict control’ test, more than often cases
resort to this test. The Nicaragua
case reverted to the ‘effective control’ test after the ICJ rejected the
application of the ‘strict control’ test.   There are a few synergies between the two ICJ tests in that, both
produce ‘potential’ for control by the outside state but, for the ‘effective
control’ test requires a lesser threshold. Whilst the ‘strict control’ test
relies heavily on the interlinking relationship between ‘dependence’ and ‘control’
of the secessionist entity itself, the ‘effective control’ test puts more
emphasis on ‘control’ exerted by the outside state on the specific actions
which constitute the internationally wrongful act, during the period under
which it was committed. The relevant conduct to review is that over which the
state had ‘effective control’. Therefore, the test only applies to partial ‘dependence’
on the outside state and allows for more of a margin of independence for the private
actor.  Under this test, state responsibility is established on a more individualistic
approach to each case with reference to specific acts of the private actor. It
does not suffice that there is a generic control of the private actor, rather
it explicitly refers to the instruction of specific conduct to a group as
highlighted in the Bosnian Genocide case29.

This may be inferred from the likes of monetary, military or logistical
assistance on part of the state for example. It must be noted as Talmon points out, that ‘control’ should
not be interchangeable with ‘support’,30
the latter is more concerned with encouragement, rather than actual strength of
power over the situation.  The ‘effective control’ test entails that the outside state had “directed or enforced”31
specific conduct which contributed to the internationally wrongful act and that
the conduct in question was an “integral
part of that operation”32.

This seems appropriate as it considers situations in which multifaceted conduct
accumulate to constitute an internationally wrongful act; state responsibility
would only be attributed to the conduct which the outside state had ‘effective
control’ over. This was important in the Nicaraguan
claim which alleged that the US had infringed it’s international obligation to “not kill, wound or kidnap citizens of
Nicaragua”.33 The
US was imputed with responsibility for the: “training,
arming, equipping, financing and supplying the contra forces …, against the
Republic of Nicaragua, in breach of its obligation under customary
international law not to intervene in the affairs of another State”34 Additionally, Article 7 of ARSIWA35
asserts that states are accountable for the actions of individual persons even
in events in which they have exceeded the power given to them. Despite it being
doubtful that the US would have given orders for the Contras to commit additional
heinous acts such as rape and torture, if it could be established that the US
had ‘effective control’ of specific operations in which these human rights
violations were committed, the US was still be held responsible.36
The difficulty lies in the burden of evidential proof of specific acts which
the applicant state would have to provide. Access to such incriminating
evidence is almost impossible to find as it would be heavily buried which adds
to the test being hard to prove.  The Bosnia Genocide Convention case
also heavily focused on this test of ‘effective control’. The ICJ was to
determine whether a claim made by Bosnia and Herzegovina had sufficient grounds
against Serbia and Montenegro (hereafter FRY) to establish state
responsibility. This claim purported that FRY had “conceived and shared”37
the idea of a “Greater Serbia”38
with the Republika Srpska (a secessionist entity) and provided assistance to
the common aim.  The ICJ concluded that the nature of the conduct at Srebrenica in July
1995 was genocide: “committed
in operations led by members of the VRS Republika Srpska, the Court now turns
to the question whether those acts are attributable to the Respondent”39 Articles 4-8 of ARSIWA40
were engaged in a bid to extend the attribution of such genocide to FRY under
state responsibility rules. Akin to the Nicaragua
case, this case was assessed under article 4 of ARSIWA41
in conjunction with the ICJ ‘strict control’ test. The ICJ made a point of highlighting
the stringent nature of the equation of groups with state organs and rejected
it as:  “neither
the Republika Srpska nor the VRS could be regarded as mere instruments through
which the FRY was acting, and as lacking any real autonomy”42 Having established that the Republika Sprska were not de jure organs of
FRY, the court looked to article 8 of ARSIWA43
and additionally, the case of Nicaragua
for how to proceed. The case then fell to be judged by the ‘effective control’
test developed in the Nicaragua case.

Specifically, the court answered the applicant’s claim which questioned whether
the fact that the crime was ‘genocide’, could lessen the stress of importance on
the analysis of specific conduct in order to judge the crime as a whole act. The
Court rejected this by declaring that the fact it was genocide did not allow
them to depart from the established test and only with an explicit lex especialis would this not be the
case44,
a view shared by Talmon.45 After a close analysis of potential attribution under both article 4 and
8 of ARWISA46,
and the ‘effective control’ test, no state responsibility could be attributed
to the FRY. There wasn’t sufficient evidence of FRY imparting instructions,
directing or having ‘effective control’ over the Republika Sprska.  Although the ‘effective control’ test is narrower
than the ‘strict control’ test in regard to the evidential burden required and scope
of state responsibility involved, it is still a demanding test to satisfy as it
requires exact thresholds to be met.  Its seems appropriate that the ICJ has created this twofold test, in
which there is a superior and subsidiary relationship. As Talmon eloquently
argues, the ICJ is the only test in which ‘control’ is assessed in the same
manner as a de jure organ. In the case of a private actor not being a de facto
state then the complete ‘control’ is logically demoted to ‘effective control’ “otherwise it is not control”47.

This argument is logically sound. It additionally highlights that the ICJ are
adequately honouring their aim to attribute conduct to a state even where a
person or group is not an organ of this state, so as a state cannot escape
responsibility simply by asserting that the private actor operates independently.

  

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