Environmental Engineering Reference
In-Depth Information
support the categorization as part of it.
177
Despite some not supporting this alloca-
tion, they also point out that the ILC Responsibility 2001 is the central international
document concerning state responsibility.
178
3.5.1.1.3
ILC Draft Articles on Responsibility of States for Internationally
Wrongful Acts
Art. 4 of the ILC regulates the conduct of the state.
179
Since neither paragraph 1 or
2 of Art. 4 of the ILC Responsibility 2001 defines the term
'
state organ
'
, there is the
proposal of a functional test.
180
Art. 5 of the ILC Responsibility 2001 stipulates the
conduct of persons or entities exercising elements of governmental authority.
181
In
both cases, there is also an imputation if the conduct is ultra vires, according to Art.
7 of the ILC Responsibility 2001.
182
Art. 8 of the ILC Responsibility 2001 regulates
conduct directed or controlled by a state, (also known as
de facto
-entities).
183
Art.
33(2) of the ILC Responsibility 2001 only stipulates that all regulations of Part Two
of the ILC Responsibility 2001 do not affect situations where the state faces any
person or an entity other than the state.
184
However, Art. 5 to 8 of the ILC
Responsibility 2001 are in Part One of Chapter 2, so they are not affected. As
mentioned above, there is no doubt that ONE is a state entity. Art. 33(2) of the ILC
177
Hob´r(
2008
), 545 (545); Schreuer (
2009
), 150 para 233; Dolzer and Schreuer (
2008
), 195;
Opposing opinion, in: Griebel (
2008
), 50; Opposing opinion, in: Gallus (
2008
), 157 (164).
178
Griebel (
2008
), 50; Gallus (
2008
), 157 (164).
179
Article 4(1): The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or any other func-
tions, whatever position it holds in the organization of the State, and whatever its character as an
organ of the central Government or of a territorial unit of the State.
Article 4(2): An organ includes any person or entity which has that status in accordance with
the internal law of the State.
180
Only if domestic law defines it as state organ as well, functionality is irrelevant, in: Hob
´
r
(
2008
), 545 (550); The functionality test is also supported by Article 5 ILC Responsibility 2001,
in: Hob
´
r(
2008
), 545 (550-551).
181
Article 5: The conduct of a person or entity which is not an organ of the State under article 4 but
which is empowered by the law of that State to exercise elements of the governmental authority
shall be considered an act of the State under international law, provided the person or entity is
acting in that capacity in the particular instance.
182
Article 7: 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.
183
Article 8: 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 is in fact acting on the instructions of, or
under the direction or control of, that State in carrying out the conduct.
184
Article 33(2): This Part is without prejudice to any right, arising from the international
responsibility of a State, which may accrue directly to any person or entity other than a State.
