CYIL vol. 12 (2021)
CYIL 12 (2021) STATE RESPONSIBILITY AND THE ACTS OF NON-STATE ACTORS … The rules on state responsibility for internationally illegal conduct are based on customary norms. The issue of state responsibility has been addressed by the International Law Commission since 1953. It was not until 2001 that the Commission adopted the Draft Articles on Responsibility of States for Internationally Wrongful Acts 1 and submitted it to the UN General Assembly to take note of the responsibility articles in form of a non-binding resolution 2 .The Articles are of a partial codification of the institute of international responsibility. The General Assembly has been returning to the articles on the state responsibility in three-year cycles since 2001, and it should comment on them next time in 2022. 3 This paper is focused on issues of state responsibility in relation to the behaviour of non- state actors. 1. Attribution of conduct to states In order for a state to incur international responsibility, two conditions must be met. Internationally unlawful conduct constitutes a breach of an international obligation of a state, it is called an objective element. The internationally illegal conduct of a state may consist of either an act or omission. An act is an active behaviour, such as the illicit use of armed force against another state. An omission is that the state did nothing, even though it should have acted. For example, in the case of Corfu Channel 4 , Albania failed to report that the channel was mined and as a result of that, British warships hit the mines. Unlawful conduct must be attributable to the state under international law, it is a subjective element. To the state is attributable its own behaviour , i.e., the conduct of organs of the state (Article 4). An organ includes any person or entity which has a status in accordance with the internal law of a state (Article 4(2)). Other persons or entities that are authorized to exercise governmental power of a partial nature are also considered to be state organs (Article 5). This may be, for example, the conduct of an organ of a railway company to which the state has granted a certain amount of police power. On the contrary, the state is not responsible for the behaviour of private (natural and legal) persons. However, the conduct of a person or group of persons is also attributable to a state if the person or group of persons actually acts based on the instructions of that state or in case their conduct is controlled or supervised by that state (Article 8). These are persons who, under certain circumstances, in fact act in the interests of the state, without being designated as its authorities for that purpose. They are referred to as de facto state or state-assimilated bodies. 5 According to the commentary of the International Law Commission, Article 8 deals with two such circumstances. In the first case , private individuals act based on the instructions of states in carrying out illegal conduct. The second case concerns a situation where persons are directed by the state or are under its control. The degree of control that must be exercised by the state in order for its conduct to be attributable to it is expressed in the case of military and 1 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001. 2 UN Doc. A/RES/56/83, Responsibility of States for internationally wrongful acts (annex), 12 December 2001. 3 MALENOVSKÝ, J. Public international law, general part and its relation to other legal systems. 7th revised edition. Brno: Masaryk university, 2020, p. 258. 4 Corfu Channel Case (U.K. v. Albania) I.C.J. Reports 1949, p. 4. 5 ČEPELKA, Č., ŠTURMA, P. Public International Law, 2nd edition. Prague: C. H. Beck, 2018, p. 389.
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