A Study On "De Facto Organs" On State Responsibility In International Law

In international law, as a general principle, a state should only be responsible for the acts of its organs. But the "organs"are not limited to formal organs set up by a state's internal law, which also so called de jure organs. For those which did not have the status of "organs", but in fact acted on behalf of the state, which also so called non-state-actors, the state should also be responsible for their acts which were carried out on behalf of the state. Such a person or a group of persons are called "de facto organs". In November, 2001, the International Law Commission adopted the Draft articles on Responsibility of States for internationally wrongful acts. It's article 8 states that the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons are in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. As we can see, this article changed the rule of subsection a of Draft articles on Responsibility of States for internationally wrongful acts (first reading) adopted by International Law Commission in 1996. In this article we will explore whether such a change is suitable or not. In addition, after the adoption of the first reading of Draft articles on Responsibility of States for internationally wrongful acts, many cases relating to "de facto organs"emerged. Their discussions on de facto organs had many differences. For example, the International Court of Justice put forward the standard of "effective control"for verifying de facto organs in its judgment on the case of Nicaragua v. United States of America; while in the case of Prosecutor v. Tadic, the International Criminal Tribunal for Yugoslavia denied the standard which was set by International Court in Nicaragua v. United States of America and advanced the new "overall control"standard. These caused a lot of discussions. So in this article we will analyze and discuss those commentaries relating to de facto organs, referring to these cases, and explore the elements for establishing the de facto organs. This dissertation comprises four chapters: Chapter 1 gives a brief introduction of the concept of de facto organs. It includes the definition of de facto organs, the confines this dissertation will handle and also the related stipulations on de facto organs in the Draft articles on Responsibility of States for internationally wrongful acts (first reading). This article supposes that in order to remove the obscurities implied in the subsection , article 8, some important changes must be made. Chapter 2 introduces the different standards of establishing de facto organs set forth in the recent international cases. Firstly, in the case of United States Diplomatic and Consular Staff in Tehran, the International Court of Justice put forward the standard of whether the actors having been charged with specific operation for verifying de facto organs in its judgment. In some related cases decided by Iran-United States Claims Tribunal, the tribunal showed its tendency to follow the standard set by the International Court of Justice in the case of United States Diplomatic and Consular Staff in Tehran. Secondly, in the case of Nicaragua v. United States of America, the International Court of Justice put forward the standard of "effective control"for verifying de facto organs in its judgment. Thirdly, in the case of Loizidou v. Turkey, the European Human Rights Court put forward the standard of "effective overall control". Finally, in the case of Prosecutor v. Tadic, the International Criminal Tribunal for Yugoslavia advanced the new "overall control"standard. This article will analyze and evaluate these arguments. Chapter 3 introduces the related stipulations on de facto organs in the Draft articles on Responsibility of States for internationally wrongful acts, that is, article 8. It states: "The conduct of a person or group of persons shall be considered an act of a Stateunder international 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."In this chapter the author will also introduce the related commentaries on this, and explore these. Chapter 4 will discuss in detail the standard for establishing de facto organs. Firstly, it will discuss the basis of attributing acts of non-state actors to state, that is, the state's control or authorization. Secondly, the author take it as a rule that we should base the requirement of concreteness on the state's instruction. Thirdly, according to the draft articles on state's responsibility, conduct acknowledged and adopted by a State as its own after it was done will also be attributed to the state. Finally, the author will, in the light of the discussions before, probe into the newly happened anti-terrorism war.