Attribution and due diligence

The 2001 ILC Articles on State Responsibility include eight Articles on attribution, but are virtually silent on due diligence. The latter principle applies in relation to private persons, the conduct of which ‘is not as such’ attributable to the state, according to the ILC.60 In underpinning its opinion the Commission cites the 1923 Tellini case:

The responsibility of a State is only involved by the commission in its territory of a political crime against the persons of foreigners if the State has neglected to take all reasonable measures for the prevention of the crime and the pursuit, arrest and bringing to justice of the criminal61

In its comments to the Articles on attribution, the ILC states that

[i]n theory, the conduct of all human beings, corporations or collectivities linked to the State by nationality, habitual residence or incorporation might be attributed to the State, whether or not they have any connection to the Government. In international law, such an approach is avoided, both with a view to limiting responsibility to conduct which engages the State as an organization, and also so as to recognize

Actor in Armed Conflict and the Market Place, Heidelberg, Brill, 2015, p. 98. See also International Military Tribunal (Nuremberg), judgment of 1 October 1946, reprinted in (1947) 41 AJIL (1), 221.

  • 57 Cristina Chiomenti, ‘Corporations and the International Criminal Court’, in Olivier de Schutter (ed.), Transnational Corporations and Human Rights, Oxford, Hart, 2006; van der Wilt, ‘Corporate criminal responsibility for international crimes’, cited in note 15 above.
  • 58 Crawford, The ILC Articles, cited in note 54 above, p. 11.
  • 59 The question whether organisations can be held responsible for the criminal offences of their em- ployees/officers hinges on the applicability of the same two legal concepts.
  • 60 See 2001 Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, UN Doc. A/56/10, p. 38.
  • 61 Ibid.

the autonomy of persons acting on their own account and not at the instigation of a public authority. Thus, the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State.[1] [2] [3] [4]

The combined application of the principles of attribution and due diligence rules out the responsibility of states for acts of TCOs, other than those they direct, or fail to pursue and prosecute. But even if that intent or unwillingness could be established, it would only provide other states with the right to make a claim under the law of international state responsibility, or file individual indictments with the ICC.63

  • [1] Ibid, p. 38. 63 it is to be noted here that the ICC has no jurisdiction over legal persons.
  • [2] 64 The ICESCR has a different approach owing to the unique nature of its obligation: these rights are
  • [3] ‘progressively realized’ (ICESCR, Art. 2(1)) rather than instantly recognized on ratification or incorporation into domestic law, allowing states parties to particularize their compliance.
  • [4] Art. 6, ICCPR. 66 Art. 8, ICCPR. 67 Art. 22, ICCPR. 6® A and Others v Secretary of State for the Home Department, [2004] UKHL 56.
 
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