International law, Sixth edition
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International Law MALCOLM N. SHAW
Ltd v. Egypt 106 ILR, p. 501 and Metalclad Corporation v. United Mexican States 119 ILR,
pp. 615, 634. 63 See ILC Commentary 2001, p. 99 and see also Yearbook of the ILC, 1975, vol. II, p. 67. 64 See e.g. the Caire case, 5 RIAA, p. 516 (1929); 5 AD, p. 146; the Vel´asquez Rodr´ıguez case, Inter-American Court of Human Rights, Series C, No. 4, 1989, para. 170; 95 ILR, pp. 259, 296 and Ila¸scu v. Moldova and Russia, European Court of Human Rights, judgment of 8 July 2004, para. 319. See also T. Meron, ‘International Responsibility of States for Unauthorised Acts of Their Officials’, 33 BYIL, 1957, p. 851. 65 6 RIAA, p. 160 (1925); 3 AD, p. 221. See also Re Gill 5 RIAA, p. 157 (1931); 6 AD, p. 203. 790 i n t e r nat i o na l l aw law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that state in carrying out the conduct. The first proposition is uncontroversial, but difficulties have arisen in seeking to define the necessary direction or control required for the second proposition. The Commentary to the article emphasises that, ‘Such 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 the operation.’ 66 Recent case-law has addressed the issue. In the Nicaragua case, the International Court declared that in order for the conduct of the contra guerrillas to have been attributable to the US, who financed and equipped the force, ‘it would in principle have to be proved that that state had effective control of the military or paramilitary operation in the course of which the alleged violations were committed’. 67 In other words, general overall control would have been insufficient to ground responsibility. However, in the Tadi´c case, the International Crimi- nal Tribunal for the Former Yugoslavia adopted a more flexible approach, noting that the degree of control might vary according to the circum- stances and a high threshold might not always be required. 68 In this case, of course, the issue was of individual criminal responsibility. Further, the situation might be different where the state deemed responsible was in clear and uncontested effective control of the territory where the violation occurred. The International Court of Justice in the Namibia case stated that, ‘Physical control of a territory and not sovereignty or legitimacy of title, is the basis of state liability for acts affecting other states.’ 69 This was reaffirmed in Loizidou v. Turkey, where the European Court of Human Rights noted that, bearing in mind the object and purpose of the European Convention on Human Rights, the responsibility of a contracting party may also arise when as a conse- quence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. 70 66 ILC Commentary 2001, p. 104. 67 ICJ Reports, 1986, pp. 14, 64–5; 76 ILR, p. 349. 68 38 ILM, 1999, pp. 1518, 1541. 69 ICJ Reports, 1971, pp. 17, 54; 42 ILR, p. 2. 70 Preliminary Objections, European Court of Human Rights, Series A, No. 310, 1995, pp. 20, 24; 103 ILR, p. 621, and the merits judgment, European Court of Human Rights, Judgment of 18 December 1996, para. 52; 108 ILR, p. 443. See also Cyprus v. Turkey, European Court of Human Rights, Judgment of 10 May 2001, para. 76; 120 ILR, p. 10. s tat e r e s p o n s i b i l i t y 791 The International Court returned to the issue in the Genocide Conven- Download 7.77 Mb. Do'stlaringiz bilan baham: |
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