CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ INDIRECT OBLIGATIONS OF BUSINESS ENTITIES UNDER THE EUROPEAN CONVENTION… conduct attributed to the state at the international level is 1) of its organs of government, or 2) of others who have acted under the direction, instigation or control of those organs, i.e. as ‘agents of the State’. 45 The Codification Division of the Office of Legal Affairs of the Secretariat of the United Nations in its publication specifies that “…the existence of a greater or lesser State participation in its capital, or, more generally, in the ownership of its assets, the fact that it is not subject to executive control – these are not decisive criteria for the purpose of attribution of the entity’s conduct to the State.” 46 According to this, the important feature is that these entities are empowered to exercise specified elements of governmental authority. Neither the form of the empowering, nor the exact content of state authority is specified in the ARSIWA, which generates difficulties in application of this provision in practice. A state-owned company may exercise simultaneously activities both in private and public sphere. For example, the conduct of a railway company to which certain police powers have been granted will be regarded as an act of the state under international law if it concerns the exercise of governmental powers, but not if it involves other activities, e.g. the sale of tickets or the purchase of rolling-stock. 47 In theory, this may well be an example of České dráhy, a.s., where under the Law No. 77/2002 Coll. the Czech Republic is the sole shareholder of the company. 48 In this case, if České dráhy exercises specified elements of governmental authority, one should speak about direct obligations of the state parties to the Convention. On the other hand, when this railway company acts in its own capacity and the dispute before the Court relates to its private conduct, we may consider possible indirect obligations of such a business entity. The theory of international law distinguishes between de iure and de facto organs of a state. 49 Based on the commentary to the ARSIWA, we may conclude that the direct ‘organs of government’ are those de iure ones and the ‘others who have acted under the direction, instigation or control of those organs, i.e. as ‘agents of the State’ are de facto organs. From this perspective, it is uncertain whether e.g. the municipality is a de iure or de facto organ of the state. Nonetheless, since both situations involve a direct obligation of the state, it is our opinion that this distinction is irrelevant. The important factor is that a conduct of business entity should be attributable to the state, which has ratified the Convention. The Court has recognised that the state is responsible for the conduct of business entities established in the form of municipal corporations, 50 local communities, 51 state-owned 45 Commentary to Chapter II of the ARSIWA. Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. 2001. Yearbook of the International Law Commission, 2001, vol. II, Part Two, as corrected, p. 38. 46 Materials on the Responsibility of States for Internationally Wrongful Acts. United Nations Legislative Series , Book 25, ST/LEG/SER B/25. United Nations, New York, 2012, p. 51. 47 Ibid ., p. 52. 48 The information is taken from the web of the Ministry of Justice. URL: https://or.justice.cz/ias/ui/rejstrik-firma. vysledky?subjektId=69800&typ=PLATNY accessed on 9 June 2017. 49 NOORTMANN, Math, REINISCH, August, RYNGAERT, Cedric. Non-State Actors in International Law . Bloomsbury Publishing, 2015, p. 172; LANOVOY, Vladyslav. Complicity and its Limits in the Law of International Responsibility . Bloomsbury Publishing, 2016; MELZER, Nils. Targeted Killing in International Law. OUP Oxford, 2008 , p. 72. 50 Yershova v. Russia , no. 1387/04, §§ 5-7, 8 April 2010; De Luca v. Italy , no. 43870/04, §§ 54-55, 24 September 2013; Otychenko and Fedishchenko v. Ukraine , nos. 1755/05 and 25912/06, § 26, 12 March 2009. 51 Rafailović and Stevanović v. Serbia , nos. 38629/07 and 23718/08, §§ 42-15, 50-67, 16 June 2015.

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