Attribution of conduct to the state: How the rules of state responsibility may be applied within the WTO dispute settlement system

Journal of International Economic Law

Volumn 5, Issue 2, 2002, Pages 393-420

  Villalpando, Santiago M ^a,b  

^a NEW YORK UNIVERSITY   (United States)

^b UNIVERSITY OF GENEVA   (Switzerland)

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EID: 0036332581     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/5.2.393     Document Type: Review

References (131)

1. The expression 'self-contained regime' was used in 1980 by the International Court of Justice to refer to the rules of diplomatic law (ICJ, United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Judgment of 24 May 1980, ICJ Reports 1980, at 40, para 86). For an authoritative study on the concept, see: Bruno Simma, 'Self-Contained Regimes', 6 Netherlands Yearbook of International Law (hereinafter 'NYIL') (1985), at 111-36.
2. The ILC's Draft Articles on Responsibility of States for Internationally Wrongful Acts, as approved in second reading in 2001 (hereinafter 'Draft Articles (2001)') are reproduced, together with their final commentaries, in ILC Report on the Work of its Fifty-Third Session (2001), UN Doc. A/56/ 10 (hereinafter 'ILC Report (2001)'). On the importance of attribution in State responsibility, see: commentary to Part One, Chapter II of the Draft Articles (2001), para 1 (ILC Report (2001), at 80). For an authoritative and thorough analysis of the issues of attribution in State responsibility in international legal literature, see: Luigi Condorelli, 'L'imputation à l'Etat d'un fait internationalement illicite: solutions classiques et nouvelles tendances', 189 Collected Courses - Academy of International Law (1984-VI), at 9.
3. The ILC's Draft Articles on Responsibility of States for Internationally Wrongful Acts, as approved in second reading in 2001 (hereinafter 'Draft Articles (2001)') are reproduced, together with their final commentaries, in ILC Report on the Work of its Fifty-Third Session (2001), UN Doc. A/56/ 10 (hereinafter 'ILC Report (2001)'). On the importance of attribution in State responsibility, see: commentary to Part One, Chapter II of the Draft Articles (2001), para 1 (ILC Report (2001), at 80). For an authoritative and thorough analysis of the issues of attribution in State responsibility in international legal literature, see: Luigi Condorelli, 'L'imputation à l'Etat d'un fait internationalement illicite: solutions classiques et nouvelles tendances', 189 Collected Courses - Academy of International Law (1984-VI), at 9.
4. This was the position of the Sub-Committee on State Responsibility, appointed in 1962 to establish a working project on this field: see its Report (UN Doc. A/CN.4/152, reproduced in Yearbook of the International Law Commission (hereinafter 'YILC'), 1963, II, at 227-28), which refers to the problem of attribution as a fundamental one in State responsibility (this Report was approved by the ILC in 1963: ibid, at 223-24, paras 51-35).
5. This was the position of the Sub-Committee on State Responsibility, appointed in 1962 to establish a working project on this field: see its Report (UN Doc. A/CN.4/152, reproduced in Yearbook of the International Law Commission (hereinafter 'YILC'), 1963, II, at 227-28), which refers to the problem of attribution as a fundamental one in State responsibility (this Report was approved by the ILC in 1963: ibid, at 223-24, paras 51-35).
6. See Draft Article 2 (unless otherwise specified, references to ILC's Draft Articles in the following text and footnotes are meant to the version adopted on second reading in 2001).
7. These were, in particular, the ILC's sessions of 1971, 1973, 1974 and 1975.
8. These were Special Rapporteur Roberto Ago's Third and Fourth Reports (reproduced respectively in: YILC, 1971, II, 1, at 199-274 and YILC, 1972, II, at 71-160).
9. These were Special Rapporteur Roberto Ago's Third and Fourth Reports (reproduced respectively in: YILC, 1971, II, 1, at 199-274 and YILC, 1972, II, at 71-160).
10. These were Draft Articles 5-15, in Chapter II ('The "act of the State" according to international law'), as adopted on first reading. For the texts and commentaries to these Draft Articles, see: YILC, 1973, II, at 188-98 (commentaries to chapter II and articles 5 and 6); YILC, 1974, II, 1, at 277-90 (commentaries to articles 7-9); YILC, 1975, II, at 61-106 (commentaries to articles 10-15).
11. These were Draft Articles 5-15, in Chapter II ('The "act of the State" according to international law'), as adopted on first reading. For the texts and commentaries to these Draft Articles, see: YILC, 1973, II, at 188-98 (commentaries to chapter II and articles 5 and 6); YILC, 1974, II, 1, at 277-90 (commentaries to articles 7-9); YILC, 1975, II, at 61-106 (commentaries to articles 10-15).
12. These were Draft Articles 5-15, in Chapter II ('The "act of the State" according to international law'), as adopted on first reading. For the texts and commentaries to these Draft Articles, see: YILC, 1973, II, at 188-98 (commentaries to chapter II and articles 5 and 6); YILC, 1974, II, 1, at 277-90 (commentaries to articles 7-9); YILC, 1975, II, at 61-106 (commentaries to articles 10-15).
13. See First Report on State Responsibility by James Crawford, UN Doc. A/4/490/Add.5 (22 July 1998), para 148 (hereinafter 'First Report (Crawford)'); Report of the International Law Commission on the Work of its Fiftieth Session (1998), UN Doc. A/53/10, para 364 (hereinafter 'ILC Report (1998)').
14. See Draft Articles 4 to 11.
15. Actually, one could even say that, under this aspect, the dispute settlement bodies tend to solve a problem of State responsibility through the direct interpretation and application of primary rules, without using, at least expressly, the general secondary rules on State responsibility. According to the ILC's distinction, the so-called 'primary rules' are those that place obligations on the State (the violation of which may generate responsibility) and the so-called 'secondary rules' are those that regulate responsibility, and determine whether that obligation has been violated and what should be the consequence of the violation (see: introductory commentary to the Draft Articles, paras I-3, ILC Report (2001), above n 2, at 59-60; previously, see, for instance: YILC, 1970, II, 2, at 306, para 66, c).
16. Actually, one could even say that, under this aspect, the dispute settlement bodies tend to solve a problem of State responsibility through the direct interpretation and application of primary rules, without using, at least expressly, the general secondary rules on State responsibility. According to the ILC's distinction, the so-called 'primary rules' are those that place obligations on the State (the violation of which may generate responsibility) and the so-called 'secondary rules' are those that regulate responsibility, and determine whether that obligation has been violated and what should be the consequence of the violation (see: introductory commentary to the Draft Articles, paras I-3, ILC Report (2001), above n 2, at 59-60; previously, see, for instance: YILC, 1970, II, 2, at 306, para 66, c).
17. This is mainly due to what Luigi Condorelli calls the 'rapport circulaire de présupposition réciproque' between the two constitutive elements of an internationally wrongful act: the distinction between the objective and subjective elements can only be done in pure logical terms and the analysis of the existence of a breach necessarily presupposes the attribution of the relevant conduct to the State, and vice versa (Condorelli, above n 2, at 96-97).
18. Panel Report, Japan - Measures Affecting Consumer Photographic Film and Paper, adopted on 31 March 1998 (WT/DS44/R), para 10.16 (hereinafter 'Japan - Film').
19. Art. 3.2. of the Understanding of Rules and Procedures Governing the Settlement of Disputes ('Dispute Settlement Understanding' or 'DSU').
20. See Draft Article 2 (a) quoted above in the text.
21. Commentary to Part One, Chapter II, para 4 (ILC Report (2001), above n 2, at 81).
22. I b i d.
23. I b i d.
24. See Draft Article 55 (lex specialis: 'These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law', as well as its commentary (ILC Report (2001), above n 2, at 356-59). See also commentary to Part One, Chapter II, para 9 (ibid, at 83-84).
25. See Draft Article 55 (lex specialis: 'These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law', as well as its commentary (ILC Report (2001), above n 2, at 356-59). See also commentary to Part One, Chapter II, para 9 (ibid, at 83-84).
26. For a thorough analysis of the application of the law of State responsibility to international trade law, see Mariano Garcia Rubio, On the Application of Customary Rules of State Responsibility by the WTO Dispute Settlement Organs. A General International Law Perspective (Geneva 2001).
27. Paras 1 and 2 of Draft Article 4.
28. The State's auto-organization is intrinsically linked with the principle that the State shall fulfill in good faith its international obligations. In this regard, see the analysis by Condorelli, above n 2, at 30, on the UN Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (GA Res. 2625 (XXV) of 24 October 1970).
29. Commentary to Part One, Chapter II, para 6 (ILC Report (2001), above n 2, at 82); see also: YILC, 1973, II, at 190, para 8. On the general theoretical framework of the question of attribution in general international law and State responsibility, see Condorelli, above n 2, at 24-48.
30. Commentary to Part One, Chapter II, para 6 (ILC Report (2001), above n 2, at 82); see also: YILC, 1973, II, at 190, para 8. On the general theoretical framework of the question of attribution in general international law and State responsibility, see Condorelli, above n 2, at 24-48.
31. Commentary to Part One, Chapter II, para 6 (ILC Report (2001), above n 2, at 82); see also: YILC, 1973, II, at 190, para 8. On the general theoretical framework of the question of attribution in general international law and State responsibility, see Condorelli, above n 2, at 24-48.
32. The GATT 1947 referred to the 'contracting party'.
33. Draft Article 4.1 and its commentary, paras 5-7 (ILC Report (2001), above n 2, at 85-88). See also, Draft Article 6 adopted on first reading.
34. Draft Article 7 provides: 'The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions'. It shall be noted that this principle applies not only to organs of the State stricto sensu, but also to territorial units and other entities empowered to exercise elements of the governmental authority, as will be described hereinafter in the text.
35. The issue of attribution of the conduct ultra vires of State organs was incidentally touched upon in Panel Report, Argentina - Measures Affecting the Export of Bovine Hides, and the Import of Finished Leather, adopted on 19 December 2000 (WT/DS155/R), at para 11.31 and at fn 342 (hereinafter 'Argentina - Export of Bovine Hides and Import of Finished Leather'). The Panel tended to exclude Argentina's responsibility, but its conclusion was drawn from an interpretation of Article XI: 1 of the GATT 1994 and did not really rely upon the general rules of State responsibility on this regard.
36. First Report (Crawford), above n 8, para 158.
37. See also commentary to Draft Article 4, paras 8-10 (ILC Report (2001), above n 2, at 88-90). The ILC notably refers to the recent case law of the International Court of Justice in LaGrand (Germany v United Slates of America), Provisional Measures, ICJ Reports 1999, at 60, para 18 and in the corresponding judgment of 27 June 2001, para 81.
38. Commentary to Draft Article 4, para 9 (ILC Report (2001), above n 2, at 89).
39. The full text of the provision was: 'Each contracting party shall take such reasonable measures as may be available to it to ensure observance of the provisions of this Agreement by the regional and local governments and authorities within its territories'.
40. Article 27 of the Vienna Convention on the Law of Treaties (UN Doc. UN A/CONF.39/27, 23 May 1969) reads as follows: 'Internal law and observance of treaties: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty . . . '.
41. As Peter Jan Kuyper points out, it was following the ruling in Canada - Measures Affecting the Sale of Gold Coins (doc. L/5863 17 September 1985, not adopted) that the Panels began to adopt an interpretation of this provision more consistent with general international law (Peter Jan Kuyper, 'The Law of GATT as a Special Field of International Law. Ignorance, further refinement or self-contained system of international law?', 15 NYIL (1994), at 227, 244-45).
42. Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994, para 13 (emphasis added).
43. The first sentence of paragraph 14 of the Understanding reads: 'The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding may be invoked in respect of measures affecting its observance taken by regional or local governments or authorities within the territory of a Member'.
44. They read as follows: 'When the Dispute Settlement Body has ruled that a provision of GATT 1994 has not been observed, the responsible Member shall Lake such reasonable measures as may be available to ensure its observance. The provisions relating to compensation and suspension of concessions or other obligations apply in cases where it has not been possible to secure such observance' (para 14 of the Understanding).
45. See Article 22.1 of the DSU.
46. In fact, the second sentence in paragraph 14 (quoted above in n 35) refers to 'the responsible Member' and, in any case, it is the State itself that will suffer the negative consequences under the provisions relating to compensation and suspension of concessions.
47. Art. I:3(a)(i) GATS.
48. Art. I:3 (a) GATS in fine.
49. Art. I:1 GATS. On the point that the measure at issue must be found to be a measure 'affecting trade in services' within the meaning of Article I:1, and thus covered by the GATS, before any further examination of consistency with other provisions of the agreement (and notably Article II) can logically be made, see: Appellate Body Report, Canada - Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted on 31 May 2000, para 152.
50. Agreement, on Subsidies and Countervailing Measures, Article 1:1.1(a)(1) (emphasis added).
51. For instance, the State would be responsible if local authorities adopt a prohibited subsidy (Article 3) or cause adverse effects to the interests of other Members through the use of a subsidy (Article 5).
52. The expression is used by the ILC in the commentary to Draft Article 5 (ILC Report (2001), above n 2, at 92-95.
53. Commentary to Draft Article 7 (adopted on first reading in 1974), para 18.
54. Commentary to Draft Article 5, para 6 (ILC Report (2001), above n 2, at 94).
55. I b i d .
56. Commentary to Draft Article 5, para 3 (ILC Report (2001), above n 2, at 93).
57. As a matter of fact, the generic term 'entity' in Draft Article 5 was used in order to include public corporations, but also semi-public entities, public agencies of various kinds and even, in special cases, private companies, provided that they are empowered to exercise functions of a public character normally exercised by State organs, and the conduct of the entity relates to the exercise of the governmental authority concerned (commentary to Draft Article 5, para 2 (ILC Report (2001), above n 2, at 92).
58. See the definition of 'measures by Members' under Art. I:3(a)(ii) GATS.
59. Article 11.3 of the Agreement on Safeguards.
60. Panel report on Japan - Restrictions on Imports of Certain Agricultural Products, BISD 35S/163, adopted 2 February 1988, para 5.2.2.2. (hereinafter 'Japan - Agricultural Products').
61. On the specific hypothesis of import restrictions under Article XI, see: Report on Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/R, WT/DS169/R, adopted 31 July 2000, para 748 (hereinafter 'Korea - Fresh, Chilled and Frozen Beef').
62. See fn 1 to Article 4.2 of the Agreement on Agriculture. For an interpretation of this provision, and its footnote, as being a specific application of the general prohibition found in Article XI of the GATT and its Ad Note, see: Korea - Fresh, Chilled and Frozen Beef, above n 52, para 748 (fn 400) and 759-62.
63. See, recently, Korea - Fresh, Chilled and Frozen Beef, above n 52, notably paras 763-69: the Panel found that the measures adopted by the Korean LPMO ('Livestock Products Marketing Organization') were inconsistent with Article XI of the GATT (and the Ad Note to Articles XI, XII, XIII, XIV and XVIII relating to state-trading enterprises) and Article 4.2 of the Agreement on Agriculture (and its footnote referring to non-tariff measures maintained through state-trading enterprises). The LPMO was a state-trading agency acting in the field of import, distribution and sale of beef, whose activities were controlled by Regulations the purpose of which was 'the establishment of operational guidelines with regard to the storage, sales, etc of beef imported in accordance with the government's supply plan implemented in order to stabilize the prices of cattle and beef in Korea'. Moreover, the LPMO was the entity appointed by the Minister of Agriculture and Forestry to administer the import regime for beef. See also: Panel Report on Japan - Agricultural Products, above n 51; Panel report on Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, BISD 35S/137, adopted 22 March 1988.
64. See, recently, Korea - Fresh, Chilled and Frozen Beef, above n 52, notably paras 763-69: the Panel found that the measures adopted by the Korean LPMO ('Livestock Products Marketing Organization') were inconsistent with Article XI of the GATT (and the Ad Note to Articles XI, XII, XIII, XIV and XVIII relating to state-trading enterprises) and Article 4.2 of the Agreement on Agriculture (and its footnote referring to non-tariff measures maintained through state-trading enterprises). The LPMO was a state-trading agency acting in the field of import, distribution and sale of beef, whose activities were controlled by Regulations the purpose of which was 'the establishment of operational guidelines with regard to the storage, sales, etc of beef imported in accordance with the government's supply plan implemented in order to stabilize the prices of cattle and beef in Korea'. Moreover, the LPMO was the entity appointed by the Minister of Agriculture and Forestry to administer the import regime for beef. See also: Panel Report on Japan - Agricultural Products, above n 51; Panel report on Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, BISD 35S/137, adopted 22 March 1988.
65. See, recently, Korea - Fresh, Chilled and Frozen Beef, above n 52, notably paras 763-69: the Panel found that the measures adopted by the Korean LPMO ('Livestock Products Marketing Organization') were inconsistent with Article XI of the GATT (and the Ad Note to Articles XI, XII, XIII, XIV and XVIII relating to state-trading enterprises) and Article 4.2 of the Agreement on Agriculture (and its footnote referring to non-tariff measures maintained through state-trading enterprises). The LPMO was a state-trading agency acting in the field of import, distribution and sale of beef, whose activities were controlled by Regulations the purpose of which was 'the establishment of operational guidelines with regard to the storage, sales, etc of beef imported in accordance with the government's supply plan implemented in order to stabilize the prices of cattle and beef in Korea'. Moreover, the LPMO was the entity appointed by the Minister of Agriculture and Forestry to administer the import regime for beef. See also: Panel Report on Japan - Agricultural Products, above n 51; Panel report on Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, BISD 35S/137, adopted 22 March 1988.
66. See paragraph 1 of the Understanding on the Interpretation of Article XVII of the General Agreement on Tariffs and Trade 1994, which suggests the following working definition, for the purposes of notification to the Council for Trade in Goods: 'Governmental and non-governmental enterprises, including marketing boards, which have been granted exclusive or special rights or privileges, including statutory or constitutional powers, in the exercise of which they influence through their purchases or sales the level or direction of imports or exports'.
67. See: Article 2 ('Preparation, Adoption and Application of Technical Regulations by Central Government Bodies'), Article 4 ('Preparation, Adoption and Application of Standards'), Article 5 ('Procedures for Assessment of Conformity by Central Government Bodies'), Article 6 ('Recognition of Conformity of Assessment by Central Government Bodies').
68. See: Article 3 ('Preparation, Adoption and Application of Technical Regulations by Local Government Bodies and Non-Governmental Bodies'), Article 7 ('Procedures for Assessment of Conformity by Local Government Bodies'), Article 8 ('Procedures for Assessment of Conformity by Non-Governmental Bodies').
69. In other words, under the rules of the Agreement, the State would have the obligation to ensure certain standards with regard to central government bodies, but would be bound by a less stringent obligation to take reasonable measures as far as the local government and non-governmental bodies are concerned.
70. On the federal clause, see commentary to Draft Article 4, para 10 (ILC Report (2001), above n 2, at 90).
71. Japan - Film, above n 12, para 10.12. The complete passage reads as follows: 'As the WTO Agreement is an international agreement, in respect of which only national governments and separate customs territories are directly subject to obligations, it follows by implication that the term measure in Article XXIII: 1(b) and Article 26.1 of the DSU, as elsewhere in the WTO Agreement, refers only to policies or actions of governments, not those of private individuals. But while this "truth" may not be open to question, there have been a number of trade disputes in relation to which Panels have been faced with making sometimes difficult judgments as to the extent to which what appear on their face to be private actions may nonetheless be attributable to a government because of some governmental connection to or endorsement of those actions'.
72. Ibid, para 10.16.
73. This interpretation of the Panel's decision is, for instance, followed by: Norio Komuro, 'Kodak-Fuji Film Dispute and the WTO Panel Ruling', 32(5) JWT (1998), at 161, 190-91.
74. This was Draft Article 11.1: 'Conduct of persons not acting on behalf of the State. 1. The conduct of a person or a group of persons not acting on behalf of the State shall not be considered as an act of the State under international law' (see the provision and its commentary in YILC, 1975, II, at 70-83).
75. Ibid, at 82.
76. The abandonment of this provision was justified by the Special Rapporteur only on the basis that Draft Article 11, as adopted on first reading, lacked any independent content (see: First Report (Crawford), above n 8, paras 244-48, especially para 247; and ILC Report (1998), above n 8, paras 425 and 448).
77. The abandonment of this provision was justified by the Special Rapporteur only on the basis that Draft Article 11, as adopted on first reading, lacked any independent content (see: First Report (Crawford), above n 8, paras 244-48, especially para 247; and ILC Report (1998), above n 8, paras 425 and 448).
78. Commentary to Part One, Chapter II, para 3 (ILC Report (2001), above n 2, at 81).
79. This was the terminology used in Draft Article 8, as adopted on first reading.
80. Draft Article 11, as adopted on second reading.
81. For an in-depth analysis on this topic, see: Claus Kress, 'L'organe de facto en droit international public, réflexions sur l'imputation à l'Etat de l'acte d'un particulier à la lumière des développements récents', 105 RGDIP (2001) 93-144.
82. In the present Draft Article 8, this criterion is referred to by the expression 'acting on the instructions of the State. It was also taken into consideration explicitly in the commentary to the similar provision adopted on first reading: 'it must be genuinely proved that the person or group of persons were actually appointed by organs of the State to discharge a particular function or to carry out a particular duty, that they performed a given task at the instigation of those organs' (YILC, 1974, II, 1, at 284-85, para 8).
83. See First Report (Crawford), above n 8, para 200.
84. The fact that the direction or control shall be exercised on the specific conduct is implied not only by the wording of the provision, but also by the commentary: '[s]uch conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation' (Commentary to Draft Article 8, para 3, ILC Report (2001), above n 2, at 104; see also the Statement of the Chairman of the Drafting Committee, 13 August 1998, on the proposed Draft Article 8). It shall also be pointed out that the requirements of direction and control are alternative and not cumulative (Commentary to Draft Article 8, para 7, ILC Report (2001), above n 2, at 108).
85. The fact that the direction or control shall be exercised on the specific conduct is implied not only by the wording of the provision, but also by the commentary: '[s]uch conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation' (Commentary to Draft Article 8, para 3, ILC Report (2001), above n 2, at 104; see also the Statement of the Chairman of the Drafting Committee, 13 August 1998, on the proposed Draft Article 8). It shall also be pointed out that the requirements of direction and control are alternative and not cumulative (Commentary to Draft Article 8, para 7, ILC Report (2001), above n 2, at 108).
86. ICJ, Case concerning Military and paramilitary Activities in and against Nicaragua (Nicaragua United States of America), Judgement of 27 June 1986, ICJ Reports 1986, p 14.
87. Ibid, at 65, para 115 in fine. The entire paragraph reads as follows: 'United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of the military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For 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 control of the military or paramilitary operations in the course of which the alleged violations were committed' (ibid, at 64-65, para 115). For an interpretation of the Nicaragua judgment as requiring the exercise of effective control over specific operations, in order to attribute such conduct to the State, see ICTY, The Prosecutor v Dusko Tadic, Case no. IT-94-1-T, Opinion and Judgment, 7 May 1997, para 585-88 (see however also Judge McDonalds Separated and Dissenting Opinion appended to that decision, as well as the position of the Appeals Chamber referred to hereinafter in the text).
88. Ibid, at 65, para 115 in fine. The entire paragraph reads as follows: 'United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of the military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For 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 control of the military or paramilitary operations in the course of which the alleged violations were committed' (ibid, at 64-65, para 115). For an interpretation of the Nicaragua judgment as requiring the exercise of effective control over specific operations, in order to attribute such conduct to the State, see ICTY, The Prosecutor v Dusko Tadic, Case no. IT-94-1-T, Opinion and Judgment, 7 May 1997, para 585-88 (see however also Judge McDonalds Separated and Dissenting Opinion appended to that decision, as well as the position of the Appeals Chamber referred to hereinafter in the text).
89. Ibid, at 65, para 115 in fine. The entire paragraph reads as follows: 'United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of the military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For 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 control of the military or paramilitary operations in the course of which the alleged violations were committed' (ibid, at 64-65, para 115). For an interpretation of the Nicaragua judgment as requiring the exercise of effective control over specific operations, in order to attribute such conduct to the State, see ICTY, The Prosecutor v Dusko Tadic, Case no. IT-94-1-T, Opinion and Judgment, 7 May 1997, para 585-88 (see however also Judge McDonalds Separated and Dissenting Opinion appended to that decision, as well as the position of the Appeals Chamber referred to hereinafter in the text).
90. ECHR, Loizidou v Turkey, Merits, Judgment of 18 December 1996. In regard to the question of attribution (or 'imputability'), the Court found that the Turkish army exercised 'effective overall control' over Northern Cyprus. Then, on the basis of this finding alone, it ruled that Turkey was responsible for the policies and actions of the Turkish Republic of Northern Cyprus in violation of the European Convention of Human Rights, without the need to determine whether Turkey actually exercised detailed control over the said policies and actions. On this point, see Dissenting Opinion of Judge Bernhardt Joined by Judge Lopes Rocha, at para 3.
91. ICTY, The Prosecutor v Dusko Tadic, Case no. IT-94-1-A, Judgment of 15 July 1999. On the relevance of this precedent with regard to the law of responsibility, see commentary to Draft Article 8, para 5 (ILC Report (2001), above n 2, at 106-07).
92. ICTY, The Prosecutor v Dusko Tadic, Case no. IT-94-1-A, Judgment of 15 July 1999. On the relevance of this precedent with regard to the law of responsibility, see commentary to Draft Article 8, para 5 (ILC Report (2001), above n 2, at 106-07).
93. ICTY, Tadic Judgment (1999), above n 76, paras 115-45. In reality, the Appeals Chamber also referred to a third hypothesis (and a third test), with regard to individuals assimilated to State organs on account of their actual behavior within the structure of a State (ibid, paras 141-44).
94. ICTY, Tadic Judgment (1999), above n 76, paras 115-45. In reality, the Appeals Chamber also referred to a third hypothesis (and a third test), with regard to individuals assimilated to State organs on account of their actual behavior within the structure of a State (ibid, paras 141-44).
95. Ibid, paras 118-19.
96. Ibid, paras 120-21. The Appeals Chamber gives the following explanation to this distinction: 'Plainly, an organized group differs from an individual in that the former normally has structure, a chain of command and a set of rules as well as the outward symbols of authority. Normally a member of the group does not act on his own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group' (ibid, para 120).
97. Ibid, paras 120-21. The Appeals Chamber gives the following explanation to this distinction: 'Plainly, an organized group differs from an individual in that the former normally has structure, a chain of command and a set of rules as well as the outward symbols of authority. Normally a member of the group does not act on his own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group' (ibid, para 120).
98. Commentary to Draft Article 8, para 6 (ILC Report (2001), above n 2, at 107-08). As the ILC points out, if the State-owned company exercises the elements of the governmental authority, its conduct would also be attributed to the State, but on the basis of the different principle codified in Draft Article 5 (see above).
99. Within a commercial corporation, individual agents often have a certain margin of maneuver in their specific activity which is unknown in a military organization and the disciplinary regime is far from being as severe. However, it could happen that, by reason of the company's structure and rules (especially if they are publicly established), the individual's discretion on certain actions be very limited by the standards set by superior authorities. In such latter cases, a window of opportunity could be opened for the application of the less stringent criterion of attribution described in the text.
100. Reference ought to be made to the studies concerning the attribution to the State of conduct of private persons in fact acting on behalf of the State (see Third Report (Ago), above n 6, at 262-67, paras 186-97 - notably, at 264-65, para 193, fn 391, where this specific hypothesis is addressed, with regard to a subsidiary argument by Argentina about the abduction of Adolf Eichmann - and commentary to Draft Article 8, as adopted on first reading, YILC, 1974, II, 1, at 283-86) and the lack of attribution when private persons are acting on their own (see Fourth Report (Ago), supra note 6, pp. 95-126, paras 61-145, and commentary to Draft Article 11, as adopted on first reading, YILC, 1975, II, pp 70-83).
101. Reference ought to be made to the studies concerning the attribution to the State of conduct of private persons in fact acting on behalf of the State (see Third Report (Ago), above n 6, at 262-67, paras 186-97 - notably, at 264-65, para 193, fn 391, where this specific hypothesis is addressed, with regard to a subsidiary argument by Argentina about the abduction of Adolf Eichmann - and commentary to Draft Article 8, as adopted on first reading, YILC, 1974, II, 1, at 283-86) and the lack of attribution when private persons are acting on their own (see Fourth Report (Ago), supra note 6, pp. 95-126, paras 61-145, and commentary to Draft Article 11, as adopted on first reading, YILC, 1975, II, pp 70-83).
102. Reference ought to be made to the studies concerning the attribution to the State of conduct of private persons in fact acting on behalf of the State (see Third Report (Ago), above n 6, at 262-67, paras 186-97 - notably, at 264-65, para 193, fn 391, where this specific hypothesis is addressed, with regard to a subsidiary argument by Argentina about the abduction of Adolf Eichmann - and commentary to Draft Article 8, as adopted on first reading, YILC, 1974, II, 1, at 283-86) and the lack of attribution when private persons are acting on their own (see Fourth Report (Ago), supra note 6, pp. 95-126, paras 61-145, and commentary to Draft Article 11, as adopted on first reading, YILC, 1975, II, pp 70-83).
103. Reference ought to be made to the studies concerning the attribution to the State of conduct of private persons in fact acting on behalf of the State (see Third Report (Ago), above n 6, at 262-67, paras 186-97 - notably, at 264-65, para 193, fn 391, where this specific hypothesis is addressed, with regard to a subsidiary argument by Argentina about the abduction of Adolf Eichmann - and commentary to Draft Article 8, as adopted on first reading, YILC, 1974, II, 1, at 283-86) and the lack of attribution when private persons are acting on their own (see Fourth Report (Ago), supra note 6, pp. 95-126, paras 61-145, and commentary to Draft Article 11, as adopted on first reading, YILC, 1975, II, pp 70-83).
104. See First Report (Crawford), above n 8, paras 281-86 and ILC Report (1998), above n 8, paras 442-44 and 451.
105. See First Report (Crawford), above n 8, paras 281-86 and ILC Report (1998), above n 8, paras 442-44 and 451.
106. The commentary refers to two jurisprudential precedents and one in practice (ILC Report (2001), above n 2, at 119-22). The Lighthouses arbitration (Permanent Court of Arbitration, Lighthouses Arbitration between France and Greece, award of 24 July 1956, 23 International Law Reports 81) is only partially relevant, since it addressed the situation following the endorsement of the acts of an autonomous predecessor State (Crete) - and not, properly speaking, an individual or group of individuals - by the successor State (Greece). The other mentioned precedent (the ICJ's Hostages case, that will be described later in the text) actually seems to set aside this criterion of attribution, since it states (in a passage not reproduced by the ILC) that: 'congratulations after the event [. . .] and other subsequent statements of official approval [though highly significant for the successive transformation of the legal nature of the events] do not alter the initially independent and unofficial character of the militants' attack on the Embassy', i.e., could not have a retrospective effect (Hostages case, above n 1, at 30, para 59). Finally, regarding State practice, the Eichmann case does not seem to be conclusive in this regard (see also Special Rapporteur Ago's position referred above n 82).
107. The commentary refers to two jurisprudential precedents and one in practice (ILC Report (2001), above n 2, at 119-22). The Lighthouses arbitration (Permanent Court of Arbitration, Lighthouses Arbitration between France and Greece, award of 24 July 1956, 23 International Law Reports 81) is only partially relevant, since it addressed the situation following the endorsement of the acts of an autonomous predecessor State (Crete) - and not, properly speaking, an individual or group of individuals - by the successor State (Greece). The other mentioned precedent (the ICJ's Hostages case, that will be described later in the text) actually seems to set aside this criterion of attribution, since it states (in a passage not reproduced by the ILC) that: 'congratulations after the event [. . .] and other subsequent statements of official approval [though highly significant for the successive transformation of the legal nature of the events] do not alter the initially independent and unofficial character of the militants' attack on the Embassy', i.e., could not have a retrospective effect (Hostages case, above n 1, at 30, para 59). Finally, regarding State practice, the Eichmann case does not seem to be conclusive in this regard (see also Special Rapporteur Ago's position referred above n 82).
108. The commentary refers to two jurisprudential precedents and one in practice (ILC Report (2001), above n 2, at 119-22). The Lighthouses arbitration (Permanent Court of Arbitration, Lighthouses Arbitration between France and Greece, award of 24 July 1956, 23 International Law Reports 81) is only partially relevant, since it addressed the situation following the endorsement of the acts of an autonomous predecessor State (Crete) - and not, properly speaking, an individual or group of individuals - by the successor State (Greece). The other mentioned precedent (the ICJ's Hostages case, that will be described later in the text) actually seems to set aside this criterion of attribution, since it states (in a passage not reproduced by the ILC) that: 'congratulations after the event [. . .] and other subsequent statements of official approval [though highly significant for the successive transformation of the legal nature of the events] do not alter the initially independent and unofficial character of the militants' attack on the Embassy', i.e., could not have a retrospective effect (Hostages case, above n 1, at 30, para 59). Finally, regarding State practice, the Eichmann case does not seem to be conclusive in this regard (see also Special Rapporteur Ago's position referred above n 82).
109. The wording of 'catalyst act' was proposed by Special Rapporteur Roberto Ago (YILC, 1972, II, at 97, para 65), and was then used by the ILC in the commentary to Article 11 (YILC, 1975, II, at 71, para 4 in fine). Although the ILC does not use the expression anymore in the commentary to the Draft Articles, it does retain the reasoning that underlies it, for instance in: commentary to Part One, Chapter II, para 4 (ILC Report (2001), above n 2, at 81).
110. The wording of 'catalyst act' was proposed by Special Rapporteur Roberto Ago (YILC, 1972, II, at 97, para 65), and was then used by the ILC in the commentary to Article 11 (YILC, 1975, II, at 71, para 4 in fine). Although the ILC does not use the expression anymore in the commentary to the Draft Articles, it does retain the reasoning that underlies it, for instance in: commentary to Part One, Chapter II, para 4 (ILC Report (2001), above n 2, at 81).
111. The wording of 'catalyst act' was proposed by Special Rapporteur Roberto Ago (YILC, 1972, II, at 97, para 65), and was then used by the ILC in the commentary to Article 11 (YILC, 1975, II, at 71, para 4 in fine). Although the ILC does not use the expression anymore in the commentary to the Draft Articles, it does retain the reasoning that underlies it, for instance in: commentary to Part One, Chapter II, para 4 (ILC Report (2001), above n 2, at 81).
112. See above n 1.
113. In fact, the Court was seized also with regard to the occupation of the United States' Consulates at Tabriz and Shiraz (the conclusions by the Court on their regard were the same as with the Embassy at Tehran).
114. Ibid, at 29-32, paras 57-68.
115. Actually, in that case, the Court distinguished two phases. The first one (corresponding to the attack against the Embassy) was qualified as described in the text. In the second phase (comprising the whole series of facts which occurred following the completion of the occupation of the Embassy), the subsequent policy by the Iranian government of maintaining the occupation of the Embassy and the detention of its inmates 'was fundamentally to transform the legal nature of the situation', since it 'translated continuing occupation of the Embassy and detention of the hostages into acts of that State' (ibid, at 33-35, paras 69-75, notably para 74). In any case, however, the Court's finding regarding this second phase did not change its qualification of the attack itself, for the reasons explained in para 59 of the decision (referred to above in n 84).
116. A different hypothesis would be the one in which the State adopted a legal act vesting the individual or the private company with elements of public authority, thus allowing them to take measures restricting trade; the consequent conduct would be attributed to the State by virtue of the principle codified in ILC's Draft Article 5 (attribution to the State of the conduct of entities exercising elements of the governmental authority).
117. Appellate Body Report on Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 11 December 2000, para 146.
118. Panel Report on Japan - Trade in Semi Conductors, BISD 35S/116, adopted on 26 March 1988, at para 109; see also paras 108-15.
119. As a consequence, the Panel in the Film Case is certainly wrong when it refers to the Semi-Conductors case as being a case in which 'panels have been faced with making sometimes difficult judgments as to the extent to which what appear on their face to be private actions may nonetheless be attributable to a government because of some governmental connection to or endorsement of those actions' (Japan - Film, above n 12, paras 10.12 and 10.14; emphasis added).
120. Ibid, para 10.9.
121. Panel Report on Argentina -Export of Bovine Hides and Import of Finished Leather, above n 26.
122. The above-mentioned resolution (reproduced in ibid, para 11.2) provided for the participation of representatives of the Argentinean Association of Industrial Producers of Leather, Leather Manufactures and Related Products (ADICMA) in the inspection of raw bovine hide exports.
123. As for Argentina, see, for instance, ibid, paras 4.3, 4.59 or 11.10; as for the European Communities, see, for instance, ibid, para 11.22.
124. As for Argentina, see, for instance, ibid, paras 4.3, 4.59 or 11.10; as for the European Communities, see, for instance, ibid, para 11.22.
125. On this hypothesis, see the analysis conducted above on attribution to the State of conduct of para-statal entities.
126. At the beginning of its reasoning, the Panel quotes the second of the two passages of the Film case reproduced above in our text, which refers to the attribution of private conduct to the State (Argentina - Export of Bovine Hides and Import of Finished Leather, above n 26, para 11.18). At a later stage (when dealing with the possibility of considering the presence of tanners' representatives, their access to confidential information and abuse of such information as an export restriction), the Panel then explicitly refers to the possibility of attributing a private conduct to the State: 'In our view, it is possible that a government could implement a measure which operated to restrict exports because of its interaction with a private cartel. Other points would need to be argued and proved (such as whether there was or needed to be knowledge of the cartel practices on the part of the government) or, to put it as mentioned above, it would need to be established that the actions are properly attributed to the Argentinean government under the rules of state responsibility. But we have not reached that stage here', (ibid, para 11.51). It is our view that, in this case, it is the measure itself, as adopted by the governmental authorities, that would breach Article XI:1, the private conduct merely catalyzing the State's wrongful act.
127. At the beginning of its reasoning, the Panel quotes the second of the two passages of the Film case reproduced above in our text, which refers to the attribution of private conduct to the State (Argentina - Export of Bovine Hides and Import of Finished Leather, above n 26, para 11.18). At a later stage (when dealing with the possibility of considering the presence of tanners' representatives, their access to confidential information and abuse of such information as an export restriction), the Panel then explicitly refers to the possibility of attributing a private conduct to the State: 'In our view, it is possible that a government could implement a measure which operated to restrict exports because of its interaction with a private cartel. Other points would need to be argued and proved (such as whether there was or needed to be knowledge of the cartel practices on the part of the government) or, to put it as mentioned above, it would need to be established that the actions are properly attributed to the Argentinean government under the rules of state responsibility. But we have not reached that stage here', (ibid, para 11.51). It is our view that, in this case, it is the measure itself, as adopted by the governmental authorities, that would breach Article XI:1, the private conduct merely catalyzing the State's wrongful act.
128. See the reasoning in ibid, paras 11.22-11.55. The Panel successively addresses three different questions (reproduced in ibid, para 11.8), which are all concerned with the measure itself as adopted by the Argentinean Government. After its analysis, the Panel concludes that there is 'simply no proof that Resolution 2235 is what is causing (or making effective) the export restriction' (ibid, para 11.54-emphasis added); consequently it did not and 'that the evidence is sufficient to prove that there is an export restriction made effective by the measure in question within the meaning of Article XI of the GATT 1994' (ibid, para 11.55 - emphasis added).
129. See the reasoning in ibid, paras 11.22-11.55. The Panel successively addresses three different questions (reproduced in ibid, para 11.8), which are all concerned with the measure itself as adopted by the Argentinean Government. After its analysis, the Panel concludes that there is 'simply no proof that Resolution 2235 is what is causing (or making effective) the export restriction' (ibid, para 11.54-emphasis added); consequently it did not and 'that the evidence is sufficient to prove that there is an export restriction made effective by the measure in question within the meaning of Article XI of the GATT 1994' (ibid, para 11.55 - emphasis added).
130. See the reasoning in ibid, paras 11.22-11.55. The Panel successively addresses three different questions (reproduced in ibid, para 11.8), which are all concerned with the measure itself as adopted by the Argentinean Government. After its analysis, the Panel concludes that there is 'simply no proof that Resolution 2235 is what is causing (or making effective) the export restriction' (ibid, para 11.54-emphasis added); consequently it did not and 'that the evidence is sufficient to prove that there is an export restriction made effective by the measure in question within the meaning of Article XI of the GATT 1994' (ibid, para 11.55 - emphasis added).
131. See the reasoning in ibid, paras 11.22-11.55. The Panel successively addresses three different questions (reproduced in ibid, para 11.8), which are all concerned with the measure itself as adopted by the Argentinean Government. After its analysis, the Panel concludes that there is 'simply no proof that Resolution 2235 is what is causing (or making effective) the export restriction' (ibid, para 11.54-emphasis added); consequently it did not and 'that the evidence is sufficient to prove that there is an export restriction made effective by the measure in question within the meaning of Article XI of the GATT 1994' (ibid, para 11.55 - emphasis added).