IRAC is an acronym for [Issue + Rule + Analysis + Conclusion], a smart documenting technique often used when displaying research results conducted to answer critical legal questions. In this IRAC, we shall attempt to decide on Amalea’s best offence strategy by determining which acts and omissions of Ritania may be held responsible and liable under public international law.  

Acts and Omissions at Issue :

  • Approval of EIGP(Excelsior Island Gas & Power Limited)’s Project by Ritania’s Department of Resource Management (DRM) in the absence of an Environmental Impact Assessment (EIA) considering possible trans-boundary effects
  • Dredging Activity by EIGP in the Malachi Gap [ ACT ]
  • Ritanian Ambassador’s failure to cooperate to Amalean authorities’ request to assess trans-boundary effects of the proposed Project

Setting aside the illegality of the acts and omissions listed above (primary obligations) which will be determined in a separate IRAC by Gabin, here we shall analyze whether if the dredging activity of EIGP – a company wholly-owned by a private individual Esmerald Kali – is attributable to the Respondent State – Ritania.  

Analysis :

Should legal counsel for Amalea choose to argue that the dredging activity of EIGP is attributable to Ritania, she is bound to run into several problems. 

Theoretically, it can be argued that the approval of the specific dredging activity of such scale within shared waters where sovereign rights of two coastal states co-exist must be understood as a “governmental authority” under Ritania’s Department of Resource Management (DRM) which has been delegated to a private entity, EIGP. However, it seems that not a single article from ARSIWA is directly applicable to convincingly find the acts of EIGP as attributable to Ritania. 

Nowhere in the Compromis is it indicated that the energy business is government owned or  As a general principle, the conduct of private persons or entities is not attributable to the State under international law.

Article 8 of ARSIWA “Conduct directed or controlled by a State” cannot be applied for EIGP is no evidence to suggest that “in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct” – Ritania. There is no evidence to suggest the existence of “a specific factual relationship [a real link] between the person or entity engaging in the conduct and the State.” 

In one case before the Iran-United States Claims Tribunal, an autonomous foundation established by the State held property for charitable purposes under close governmental control; its powers included the identification of property for seizure. The Tribunal held that “[i]n its establishment, governance, and objectives, the Foundation thus appears to be an instrumentality of the Government of Iran.” The Foundation could proceed with discovery, seizure, removal, maintenance, inventory taking, assessment, change for the better, and every other action required for the management of the Pahlavi family and related persons’properties. This Foundation was subject to considerable oversight by the Iranian government; its officers were appointed, dismissed, and directed by an officer appointed by Khomeini, its financial and business affairs were supervised by the office of the Iranian prime minister and its accounts were subject to government audit.” It was held that this Foundation was a public and not a private entity, and therefore within the tribunal’s jurisdiction; with respect to its administration of allegedly expropriated property, it would in any event have been covered by article 5 (Hyatt International Corporation v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 9, p. 72, at pp. 88–94
(1985))

It is questionable whether Amalea could cite Iran-United States Claims Tribunal, but rather Ritanian representation will quote it to argue the independent characteristics of EIGP from the Ritanian government.  

Canada – Dairy (Art. 21.5 II), WTO Appellate Body (US v. Canada) (2001)

“… in support of its finding that Canadian provincial marketing boards acting under the explicit authority delegated to them by either the federal Government or a provincial government were “agencies” of those Governments in the sense of… , even if they were not formally incorporated as Government agencies.

“irrespective of the role of private parties… the obligations… remain obligations imposed on Canada… The question is not whether one or more individual milk producers, efficient or not, are selling CEM at a … The issue is whether Canada, on a national basis, has respected its WTO obligations”

 

International Arbitral Tribunal (under the ICSID Convention) Maffezini v. Kingdom of Spain (1997)

… in deciding whether the acts of the private corporation Sociedad para el Desarrollo Industrial de Galicia (with which the claimant had made various contractual dealings) were imputable to Spain, referred to draft article 7, paragraph 2, adopted by the ILC on first reading:

“a State will not necessarily escape responsibility for wrongful acts or omissions by hiding behind a private corporate veil.”

(ARSIWA Article 7 deals with the subject of acts performed by “agents” within the meaning of ARSIWA Article 5 which exceed the brief given to the entity in question by the state)

Due to the fact that EIGP cannot be categorized as a public corporation, semi-public entity, or a public agency of various kind, the question lies in whether “dredging” should be considered as a “function of a public character normally exercised by State organs.”

Article 5 of ARSIWA “Conduct of persons or entities exercising elements of governmental authority” states 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.”

Although Article 5 – at first sight – seems more promising, the commentaries seem to exclude its applicability to this specific circumstances. Article 5 was “intended to take account of the increasingly common phenomenon of para-statal entities, which exercise elements of governmental authority in place of State organs” Even in special cases, private companies may qualify as an “entity” under Article 5, “provided that in each case the in each case the entity is empowered by the law of the State 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.” For example, in some countries private security firms may be contracted to act as prison guards and in that capacity may exercise public powers such as powers of detention and discipline pursuant to a judicial sentence or to prison regulations. Private or State-owned airlines may have delegated to them certain powers in relation to immigration control or quarantine. Article 5 has increased in relevance as the modern state has outsourced increasing numbers of what would classically have been considered government functions, resulting in the creation of para-statal entities. “Commentary (6) of Article 5 does not attempt to identify precisely the scope of “governmental authority” for the purpose of attribution of the conduct of an entity to the State. Beyond a certain limit, what is regarded as “governmental” depends on the particular society, its history and traditions. Of particular importance will be not just the content of the powers, but the way they are conferred on an entity, the purposes for which they are to be exercised and the extent to which the entity is accountable to government for their exercise. These are essentially questions of the application of a general standard to varied circumstances.” “For the purposes of article 5, an entity is covered even if its exercise of authority involves an independent discretion or power to act; there is no need to show that the conduct was in fact carried out under the control of the State.”

(i) Definition of Governmental Authority : 

(a) Content of the Powers

Crawford writes that “if a private person can perform the function without the government’s permission, it is not to be considered governmental.” EIGP was licensed by the Ritanian government to proceed with the dredging which was part of the Excelsior Island Project. 

(b) Manner in which they are conferred on the Entity

Specific examples of activities involving the exercise of governmental authority include “power of arrest, detention, and internal discipline.” The construction of an artificial island involving dredging can arguably be a sovereign act which rights that confer it are codified within UNCLOS. However, it is not one of the cited examples within ARSIWA.

(c) Purposes for which the Powers are to be Exercised

Crawford asks the question “has the power been bestowed in order to advance classically sovereign objectives?”

(d) Extent to which the Entity is publicly accountable for their Exercise

This part refers to “accountability, and the extent to which the government is entitled to supervise those on whose it has bestowed governmental authority.” The Compromis fails to provide any specificity into whether the Ritanian government had any supervisory power over EIGP’s Project. 

(ii) Empowered by the Law of the State :

As for the discussion on to whether EIGP was “empowered by the law of the State” under Article 5 of ARSIWA, the Compromis writes that “

 

Dredging

an excavation activity usually carried out underwater, in shallow seas or freshwater areas with the purpose of gathering up bottom sediments and disposing of them at a different location.

Dredging can create disturbance to aquatic ecosystems, often with adverse impacts. In addition, dredge spoils may contain toxic chemicals that may have an adverse effect on the disposal area; furthermore, the process of dredging often dislodges chemicals residing in benthic substrates and injects them into the water column.

The activity of dredging can create the following principal impacts to the environment:

  • release of toxic chemicals (including heavy metals and PCB) from bottom sediments into the water column
  • collection of heavy metals lead left by fishing, bullets, 98% mercury reclaimed [natural occurring and left over from gold rush era]
  • short term increases in turbidity, which can affect aquatic species metabolism and interfere with spawning. Suction dredging activity is allowed only during non-spawning time frames set by fish and game (in-water work periods)
  • secondary impacts to marsh productivity from sedimentation
  • tertiary impacts to avifauna which may prey upon contaminated aquatic organisms
  • secondary impacts to aquatic and benthic organisms’ metabolism and mortality
  • possible contamination of dredge spoil sites
  • changes to the topography by the creation of “spoil islands” from the accumulated spoil
  • releases toxic compound Tributyltin, a popular biocide used in anti-fouling point banned in 2008, back into the water

The nature of dredging operations and possible environmental impacts cause the industry to be closely regulated and a requirement for comprehensive regional environmental impact assessments with continuous monitoring. The U.S. Clean Water Act requires that any discharge of dredged or fill materials into “waters of the United States,” including wetlands, is forbidden unless authorized by a permit issued by the Army Corps of Engineers. As a result of the potential impacts to the environment, dredging is restricted to licensed areas only with vessel activity monitored closely using automatic GPS systems.

  • China Harbour Engineering, China
  • Jan De Nul, Belgium
  • DEME, Belgium
  • Royal Boskalis Westminster, Netherlands
  • Van Oord Dredgign and Marine Contractors, Netherlands

……..

In Certain activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), the dredging activity was in fact attributed to the Nicaraguan government. Further research is required as to why such was the case. Should it bear similarities to our case, this has the potential to be argued as a controlling case.  

In 1872 Alabama Arbitration (Great Britain v. US), Great Britain was held liable for permitting the construction in Liverpool of the CSS Alabama, a Confederate commerce raider that caused considerable damage to Union interests… That Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first and the third of the rules established by the VIth article of the Treaty of Washington (neutrality).

Zafiro case (Great Britain v. U.S.), 6 R.I.A. 160 (1925), 160 dealt with “conduct authorized by the State: the acts of the individuals or groups can be attributable if they are empowered by local law to act on behalf of the state and are so doing.” ILC gives the Zafiro case as an example of this type of situation, where a private ship was utilized by the USA during its war with Spain in 1898. However, this is an example of acts of private individuals where they are utilized by state agencies for police, public order or other state functions as where private citizens are enlisted for a police search and then cause injury to a foreign national.

In Corfu Channel case, the Court “considered circumstantial evidence and remarked that “this indirect evidence is admitted in all systems of law, and its use is recognized by international decisions” (ICJ Reports 1949 p 4, 18.).

Ritania’s Response :

In light of this assessment, Ritania will question whether if the acts of EIGP can be considered as an exercise of state authority under ARSIWA. Under ARSIWA, the rules are “cumulative but… also limitative. In the absence of a specific undertaking or guarantee (which would be a lex specialis, a State is not responsible for the conduct of persons or entities in circumstances not covered by” ARSIWA. The cited cases above hardly seem to be controlling. Ritania should and will attempt to limit the scope of the issue as a matter of whether Ritania exercised “due diligence” in authorizing the construction of the Excelsior Island for insofar as such responsibility has been satisfied, Ritania has not incurred any state responsibility under PIL. The Compromis is clear on that EIGP is Esmerald Kali’s “wholly owned” private project company (para 20).

In the alternative, Amalea may strategically choose to argue that despite the fact that Ritania may have had the right to conduct dredging activity within the Malachi Gap, the manner in which it licensed and authorized the project was in violation of PIL. This point concerning the obligation to not cause trans-boundary harm and due diligence will be discussed in a separate IRAC.  

Conclusion :

Pursuant to Article 5 of ARSIWA, Amalea may attempt to argue that the dredging activity of EIGP is attributable to Ritania. Further research is required as to why the dredging activity in Costa Rica v. Nicaragua (2015) was found attributable to Nicaragua for this may be a controlling case for our dispute.

However, falling short of such discovery, it is fair to say that the facts within the Compromis are lacking to sufficiently support Amalea’s claim of attribut-ability and Ritania will argue this point. 

 

Rules :

Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001 (ARSIWA)

  • Article 2
    • There is an internationally wrongful act of a State when conduct consisting of an action or omission:
      1. is attributable to the State under international law; and
      2. constitutes a breach of an international obligation of the State
  • Commentaries to Article 2

(2) These two elements were specified, for example, by PCIJ in the Phosphates in Morocco case. The Court explicitly linked the creation of international responsibility with the existence of an “act being attributable to the State and described as contrary to the treaty right[s] of another State”.

ICJ has also referred to the two elements on several occasions. In the United States Diplomatic and Consular Staff in Tehran case, it pointed out that, in order to establish the responsibility of the Islamic Republic of Iran:
“[f]irst, it must determine how far, legally, the acts in question may be
regarded as imputable to the Iranian State…”

Similarly in the Dickson Car Wheel Company case, the Mexico-United States General Claims Commission noted that the condition required for a State to incur international
responsibility is “that an unlawful international act be imputed to it, that is, that there exist a violation of a duty imposed by an international juridical standard”.

(4) Conduct attributable to the State can consist of actions or omissions. Cases in which the international responsibility of a State has been invoked on the basis of an omission are at least as numerous as those based on positive acts, and no difference in principle exists between the two.

(5) For particular conduct to be characterized as an internationally wrongful act, it must first be attributable to the State. The State is a real organized entity, a legal person with full authority to act under international law. But to recognize this is not to deny the elementary fact that the State cannot act of itself. An “act of the State” must involve some action or omission by a human being or group: “States can act only by and through their agents and representatives” (German Settlers in Poland, Advisory Opinion, 1923, P.C.I.J., Series B, No. 6, p. 22.). The question is which persons should be considered as acting on behalf of the State, i.e. what constitutes an “act of the State” for the purposes of
State responsibility.

(6) In speaking of attribution to the State what is meant is the State as a subject of international law. Under many legal systems, the State organs consist of different legal
persons (ministries or other legal entities), which are regarded as having distinct rights and obligations for which they alone can be sued and are responsible. For the purposes
of the international law of State responsibility the position is different. The State is treated as a unity, consistent with its recognition as a single legal person in international law. In this as in other respects the attribution of conduct to the State is necessarily a normative operation. What is crucial is that a given event is sufficiently connected to conduct (whether an act or omission) which is attributable to the State…

(12) In subparagraph (a), the term “attribution” is used to denote the operation of attaching a given action or omission to a State. In international practice and judicial decisions, the term “imputation” is also used. But the term “attribution” avoids any suggestion that the legal process of connecting conduct to the State is a fiction, or that the
conduct in question is “really” that of someone else.

 

  • Chapter II Attribution of Conduct to a State commentary

(2) In 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 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.

Brownlie, System of the Law of Nations: State Responsibility, Part I (Oxford, Clarendon Press, 1983), pp. 132–166; D. D. Caron, “The basis of responsibility: attribution and other trans-substantive rules”, The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility, R. B. Lillich and D. B. Magraw, eds. (Irvington-on-Hudson, N.Y., Transnational, 1998), p. 109; L. Condorelli, “L’imputation à l’État d’un fait internationalement illicite : solutions classiques et nouvelles tendances”, Recueil des cours…, 1984–VI (Dordrecht, Martinus Nijhoff, 1988), vol. 189, p. 9; H. Dipla, La responsabilité de l’État pour violation des droits de l’homme: problèmes d’imputation (Paris, Pedone, 1994); A. V. Freeman, “Responsibility of States for unlawful acts of their armed forces”, Recueil des cours…, 1955–II (Leiden, Sijthoff, 1956), vol. 88, p. 261; and F. Przetacznik, “The international responsibility of States for the unauthorized acts of their organs”, Sri Lanka Journal of International Law, vol. 1 (June 1989), p. 151.

(3) As a corollary, the conduct of private persons is not as such attributable to the State. This was established, for example, in the Tellini case of 1923. The Council of the
League of Nations referred to a Special Commission of Jurists certain questions arising from an incident between Italy and Greece. This involved the assassination on
Greek territory of the Chairman and several members of an international commission entrusted with the task of delimiting the Greek-Albanian border. In reply to question
five, the Commission stated that:
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 criminal.

(4) The attribution of conduct to the State as a subject of international law is based on criteria determined by international law and not on the mere recognition of a link of factual causality. As a normative operation, attribution must be clearly distinguished from the characterization of conduct as internationally wrongful. Its concern is to
establish that there is an act of the State for the purposes of responsibility. To show that conduct is attributable to the State says nothing, as such, about the legality or otherwise
of that conduct, and rules of attribution should not be formulated in terms which imply otherwise. But the different rules of attribution stated in chapter II have a cumulative effect, such that a State may be responsible for the effects of the conduct of private parties, if it failed to take necessary measures to prevent those effects. For example, a receiving State is not responsible, as such, for the acts of private individuals in seizing an embassy, but it will be responsible if it fails to take all necessary steps to protect the embassy from seizure, or to regain control over it (United States Diplomatic and Consular Staff in Tehran case) In this respect, there is often a close link between the basis of attribution and the particular obligation said to have been breached, even though the two elements are analytically distinct.

(6) In determining what constitutes an organ of a State for the purposes of responsibility, the internal law and practice of each State are of prime importance. The structure of the State and the functions of its organs are not, in general, governed by international law. It is a matter for each State to decide how its administration is to be structured and which functions are to be assumed by government. But while the State remains free to determine its internal structure and functions through its own law and practice, international law has a distinct role. For example, the conduct of certain institutions performing public functions and exercising public powers (e.g. the police) is attributed to the State even if those institutions are regarded in internal law as autonomous and independent of the executive government. Conduct engaged in by organs of the State in excess of their competence may also be attributed to the State under international law, whatever the position may be under internal law.

(7) The State as a subject of international law is held responsible for the conduct of all the organs, instrumentalities and officials which form part of its organization and act in that capacity, whether or not they have separate legal personality under its internal law.

 

  • Article 5 Conduct of entities empowered to exercise the governmental authority of a State
    • 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.
  • Commentaries to Article 5

(1) The article is intended to take account of the increasingly common phenomenon
of parastatal entities, which exercise elements of governmental authority in place of State organs, as well as situations where former State corporations have been privatized
but retain certain public or regulatory functions.

(2) The generic term “entity” reflects the wide variety of bodies which, though not organs, may be empowered by the law of a State to exercise elements of governmental
authority. They may include public corporations, semipublic entities, public agencies of various kinds and even, in special cases, private companies, provided that in each
case the entity is empowered by the law of the State 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.
For example, in some countries private security firms may be contracted to act as prison guards and in that capacity may exercise public powers such as powers of detention
and discipline pursuant to a judicial sentence or to prison regulations. Private or State-owned airlines may have delegated to them certain powers in relation to immigration
control or quarantine.

In one case before the Iran-United States Claims Tribunal, an autonomous foundation established by the State held property for charitable purposes under close governmental control; its powers included the identification of property for seizure. It was held that it
was a public and not a private entity, and therefore within the tribunal’s jurisdiction; with respect to its administration of allegedly expropriated property, it would in any
event have been covered by article 5 (Hyatt International Corporation v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 9, p. 72, at pp. 88–94
(1985))

 

  • Article 8 Conduct carried out on the instructions of a State organ or under its direction or control
  • Commentaries to Article 8

As a general principle, the conduct of private persons or entities is not attributable to the State under international law. Circumstances may arise, however, where such conduct is nevertheless attributable to the State because there exists a specific factual relationship between the person or entity engaging in the conduct and the State. Article 8 deals with two such circumstances. The first involves private persons acting on the instructions of the State in carrying out the wrongful conduct. The second deals with a more general situation where private persons act under the State’s direction or control. Bearing in
mind the important role played by the principle of effectiveness in international law, it is necessary to take into account in both cases the existence of a real link between the person or group performing the act and the State machinery

 

  • Article 9 Certain conduct involving elements of governmental authority, carried out in the absence of the official authorities. 

These rules are cumulative but they are also limitative. In the absence of a specific undertaking or guarantee (which would be a lex specialis), a State is not responsible
for the conduct of persons or entities in circumstances not covered by this chapter. As the Iran-United States Claims Tribunal has affirmed, “in order to attribute an act
to the State, it is necessary to identify with reasonable certainty the actors and their association with the State”. This follows already from the provisions of article 2.

 

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“Injustice Anywhere is a Threat to Justice Everywhere” – King, Jr.

Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

 

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