1.15

The attribution of international responsibility to a State for conduct of private individuals within the territory of another State

The issue of the attribution of international responsibility to States for conduct of a group of individuals within the territory of another State has become a question of control. International jurisprudence has addressed this question by advancing several different control tests that allegedly better resolve the attribution question. The ICJ put forward two control tests in the Nicaragua case, the so-called strict control or agency test and the effective control test. The Appeals Chamber of the ICTY found it unpersuasive and used instead what named the overall control test. Moreover, the ECtHR has developed yet another test: the effective overall control test. These control tests will be set out explaining the different rationales that argue for and against their adoption and it will be seen that they show a tension between the need for what has been called “real accountability” of States and the attribution of responsibility to States only for their own conduct. It will be argued that while accountability is an important purpose, especially when dealing with international humanitarian law, it is necessary to ensure that States are only held responsible for conduct with which there is a sufficient close link so as to be considered its own.

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Elena Laura Álvarez Ortega, «The attribution of international responsibility to a State for conduct of private individuals within the territory of another State. », InDret 1.15