¹ See ICTY (Appeals Chamber), Prosecutor v Dusko Tadic (IT-94-1), 15 July 1999, paras 99 ff. See gen A de Hoogh, ‘Articles 4 and 8 of the 2001 ILC articles on state responsibility, the Tadic case and attribution of acts of Bosnian Serb authorities to the Federal Republic of Yugoslavia’ (2002) 72 BYBIL 255–292; Dopagne, F, ‘La responsabilité de l'État du fait des particuliers: les causes d'imputation revisitées par les articles sur la responsabilité de l'État pour fait internationalement illicite’ (2001) 34 Revue belge de droit international 492–525Google Scholar.

² ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) 26 February 2007, paras 396 ff. See gen M Spinedi ‘On the Non Attribution of the Bosnian Serbs’ Conduct to Serbia' (2007) 5 J Intl Crim Justice 829–838; J Griebel and M Plücken, ‘New Developments Regarding the Rules of Attribution? The International Court of Justice's Decision in Bosnia v Serbia’ (2008) 21 LJIL 601–622.

³ International Law Commission, ‘Report of the International Law Commission on the Work of its 48th Session’ (6 May to 26 July 1996) A/51/10, (F), chp III, paras 51–66; see also ‘Report of the International Law Commission on the work of its 53rd Session (23 April–1 June and 2 July– 10 August 2001) A/56/10, 2001, chp IV, paras 30–77.

⁴ The question seems to have only been debated in the context of wars of national liberations. For a rare contribution, see H Atlam ‘National liberation movements and international responsibility’ in M Spinedi and B Simma (eds), United Nations Codification of State Responsibility (Oceana, New York, 1987) 35–56. See also A Clapham, Human Rights Obligations of Non-State Actors (OUP, Oxford, 2006) 285–286. On the particular hypothesis of insurgents establishing a new State, see Dumberry, P, ‘New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement’ (2006) 17EJIL 605Google Scholar.

⁵ J d'Aspremont, ‘Legitimacy of Governments in the Age of Democracy’ (2006) 38 NYUJILP 877. See also, J d'Aspremont, L'Etat non démocratique en droit international (Paris, Pedone, 2008).

⁶ After the official end of the civil war in 1996, the former warlord Charles G Taylor was elected President of Liberia on August 2, 1997. The election was judged free and fair by some observers. See ‘Liberia's Ambiguous Election’, New York Times, 27 July 1997.

⁷ Joseph Kabila, before being elected president of Congo on 29 October 2006, was at the age of 25 the commander of the famous army of ‘kadogos’ and played a key role in the rebellion led by his father who overthrew Mobuto. See ‘After Violent Decades, Congo Finally Installs an Elected Leader’ (Reuters), New York Times, (New York 7 December 2006).

⁸ Paul Kagame, who had already been appointed president by his own government in 2000, was elected president in 2003. It must be acknowledged that in the case of Rwanda, the absence of opposition and the particular circumstances of the elections have seriously hampered their free and fair character. See, M Lacey, Rwandan President Declares Election Victory', New York Times, (New York 26 August 2003).

⁹ The elections in mid-2005 were won by the former Hutu rebel National Council for the Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD). The sole candidate, Pierre Nkurunziza of the CNDD-FDD, was overwhelmingly endorsed as president by the parliament. Nkurunziza was sworn in on 26 August 2005. See J-P Rémy, ‘Au Burundi, l'élection présidentielle offre un espoir à un pays martyr’ Le Monde, (Paris 20 August 2005).

¹⁰ After a popular rebellion which led to the overthrow and exile of Anastasio Somoza Debayle in 1979, Daniel Ortega became a member of the ruling junta and was later elected president, serving from 1985 to 1990. On 5 November 2006, he returned to the presidency after winning the elections. See J C McKinley Jr. and J Replogle, ‘Leftist Headed Toward Victory In Nicaragua’, New York Times, (New York 7 November 2006).

¹¹ See ‘Former rebel leader Hashim Thaci elected prime minister of Kosovo’, International Herald Tribune, 9 January 2008. On this issue of Kosovo, see the recent debate on the Interest Group on Peace and Security (IGPS) website (http://igps.wordpress.com/); See more generally J d'Aspremont, ‘Regulating Statehood: The Kosovo Status Settlement’ (2007) 20 LJIL 649–668.

¹² See the ‘4th Report of Roberto Ago,’ A/CN.4/264, Yearbook of the International Law Commission, 1972, para 193–214, 144–151.

¹³ This principle was the object of an express provision in previous sets of draft articles. See Former Article 14 and its commentary,' Yearbook of the International Law Commission, 1975, vol II, 91–99.

¹⁴ International Law Commission, ‘4th Report of Ago’ (n 12) para 194. See gen P Dumberry (n 4) 605–621.

¹⁵ See gen L Zegveld, Accountability of Armed Opposition Groups in International Law (Cambridge University Press, 2002). See also A Clapham (n 4) 275–285.

¹⁶ 4th Report of Roberto Ago (n 12) para 196.

¹⁷ J Crawford, The International Law Commission's Articles on State Responsibility, Introduction, Text and Commentaries (CUP, Cambridge 2005), commentary of Article 10, 117, para 5 (emphasis added). See also ‘4th Report of Ago’ (n 12) para 194 and Yearbook of the International Law Commission, 1975, vol II, para 3.

¹⁸ For similar doubts about the use of continuity as a rationale for this rule, see I Brownlie, System of the Law of Nations: State Responsibility (Clarendon Press, Oxford, 1983) 178. See also J Hessbruegge, ‘The Historical Development of the Doctrines of Attribution and Due Diligence in International Law’ (2004) 36 NYUJILP 265, 273.

¹⁹ The distinction between attribution of conduct and attribution of responsibility has scantly been systematized in the framework of State responsibility although it underlies the chapter IV of the first part of the ILC articles. The distinction between attribution of conduct and attribution of responsibility has been more expressly referred to by the Special Rapporteur of the ILC on the Responsibility of International Organizations in its second report, A/CN/4/541, pp. 6–7. For some comments on the use of that distinction in the context of the responsibility of international organizations, see J d'Aspremont, ‘Abuse of the Legal Personality of International Organizations and the Responsibility of Member States’ (2007) 4 Intl Organizations L Rev 91–119.

²⁰ See British Claims in the Spanish Zone of Morocco, RIAA, vol II, 615 (1924), 648.

²¹ J Crawford (n 17) 147.

²² ibid 145.

²³ See, eg International Law Commission, ‘8th Report on State Responsibility by Mr Roberto Ago’, Special Rapporteur, UN Doc A/CN.4/318, 2(1) Yearbook of the International Law Commission 3 (1979) 17.

²⁴ ibid 5. On this debate, see the interesting analysis of one ground of responsibilité derivée of Fry, J, ‘Coercion, Causation and the Fictional Elements of Indirect State Responsibility’ (2006–2007) 40 Vanderbilt University Law School 611–641.Google Scholar

²⁵ J Crawford (n 17) 117.

²⁶ J Crawford (n 17) 119 para 12; see also the commentary of former Article 15, Yearbook of the International Law Commission, 1975, vol II para 9–19. Most of the case-law to which it is resorted stems from the General Claims Commission between United States and Mexico under the Convention of 8 September 1923. On its case-law, see J de Beus, The Jurisprudence of the General Claims Commission, United States and Mexico under the Convention of September 8, 1923 (Leiden, Martinus Nijhoff, 1938).

²⁷ See the decision of the Supreme Court of Namibia about the responsibility of Namibia for the acts of the predecessor administration of South Africa, Namibia v Mwandinghi, 1992 (2) SA 355, 360, ILR, vol 91, 341. The commentary acknowledges that the decision was based on a provision of the Constitution. See J Crawford (n 17) 120 para 14.

²⁸ It is interesting to note that Verzijl considers that the case-law of arbitral tribunals and mixed commissions on this question is beset by a great terminological and logical confusion. See J H Verzijl, International Law in Historical Perspective—Part IV Judicial Facts as Sources of International Rights and Obligations (Leiden, Sijthoff, 1973) 695. Cp with the 1961 Harvard Draft Convention on International Responsibility, art 18, (1961) 55 AJIL 548.

²⁹ Commentary Article 15, Yearbook of the International Commission, 1975, vol II para 9.

³⁰ For a similar conclusion in the case of insurgents establishing a new State see P Dumberry (n 4) 612.

³¹ J Crawford (n 17) 120 para 12.

³² This is the case of the rule pertaining to complicity which was deemed declarative of customary international law by the International Court of Justice while probably not being of such a character at the time of its adoption by the ILC. See ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), (Merits) 26 February 2007, para 420; cp with J Crawford (n 17) 148–151.

³³ It is interesting that this is highlighted in the commentary of former Article 15 which provides that ‘the point is not so much to find a justification for the attribution to the State, as a possible source of “international responsibility”, of conduct engaged in by the organs of an insurrectional movement before the latter has taken power’ for ‘what is important is to determine whether that attribution is or is not made in the real world of international relations’, Yearbook of the International Law Commission, 1975, vol II, para 3.

³⁴ J Crawford (n 17) 117 para 4.

³⁵ For a recent example, see Kasaija, P Apuuli, ‘The International Criminal Court (ICC) and the Lord's Resistance Army (LRA) Insurgency in Northern Uganda’ (2004) 15 Crim L Forum 391–409.Google Scholar

³⁶ On the lofty goal pursued by this rule, see J A Hessbruegge (n 18) 274.

³⁷ ICJ, North Sea Continental Shelf, Rec 1969, para 72.

³⁸ On that difficulty, see d'Aspremont, J, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials’ (2008) 19 EJIL 1075–93, esp 1085CrossRefGoogle Scholar. See also A Boyle and C Chinkin, The Making of International Law (Oxford University Press, 2007) 220–222 or Baxter, R ‘International Law in “Her Infinite Variety”’ (1980) 29 ICLQ 549–66CrossRefGoogle Scholar.

³⁹ UNTS, vol 1125, 609.

⁴⁰ 118 para 9.

⁴¹ Over the threshold of additional Protocol I, see L Zegveld (n 15) and A Clapham (n 4) 275–285.

⁴² Yearbook of the International Law Commission, 1975, vol II para 5.

⁴³ J Crawford (n 17) 118 para 7.

⁴⁴ ibid.

⁴⁵ For a far more radical view on the relationship between Responsibility and Legitimacy, see contra Nissel, A, ‘The ILC Articles on State Responsibility Between Self-Help and Solidarity’ (2006) 38 NYUJILP 355.Google Scholar

⁴⁶ See gen Dupuy, P M, ‘Dionisio Anzilotti and the Law of International Responsibility of States’ (1992) 13 EJIL 132.Google Scholar

⁴⁷ See for instance Article 16 of the articles on State responsibility pertaining to complicity.

⁴⁸ Nolte, G, ‘From Dionisio Anzilotti to Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations’ (2002) 3 EJIL 1083.CrossRefGoogle Scholar

⁴⁹ On the distinction between legitimacy of origin and legitimacy of exercise, see J d'Aspremont, ‘Legitimacy of Government in the Age of Democracy’ (n 5).

⁵⁰ J Crawford (n 17) 119 para 11. The ILC refers to the ICJ statement that ‘physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States’ (Legal Consequences for States of the Continued Presence of South Africa in Namibia, ICJ Reports, 1971, para 118).

⁵¹ On the non-application of Article 10 of the articles on State responsibility in situation of a coup d'Etat, see J d'Aspremont, ‘La licéité des coups d'Etat en droit international’ Proceedings of the Société française pour le droit international (Paris, Pedone, 2009) 117–137.

⁵² Yearbook of the International Law Commission, 1975, vol II, para 5.

⁵³ J Crawford (n 17) 120 para 7.

⁵⁴ See the abovementioned examples of Liberia, Congo, Rwanda, Burundi (n 6–9).

⁵⁵ J Crawford (n 17) 118 para 7.

⁵⁶ For an example where a power-sharing agreement has not led to the organization of free and fair elections, see the peace agreement in January 2005 in Sudan between the government and rebellion of South Sudan represented by J Garang, New York Times, (New York 9 January 2005).

⁵⁷ The most radical liberal view on this question is probably offered by Tesón, F R, ‘The Kantian Theory of International Law’ (1992) 92 Columbia L Rev 53, 54–55CrossRefGoogle Scholar. For milder forms of the democratic entitlement theory, see Franck, T M, ‘The Emerging Right to Democratic Governance’ (1992) 86 Am J Intl L 46CrossRefGoogle Scholar; Cerna, C M, ‘Universal Democracy: An International Legal Right or the Pipe Dream of the West?’ (1994–1995) 27 NYUJILP 289, 329.Google Scholar

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⁵⁹ J d'Aspremont, L'Etat non démocratique (n) 187–316.

⁶⁰ Indeed, notwithstanding the reserving clause adopted by the International Law Commission, there is a fair amount of practice as well as scholarship buttressing the idea that, in the case of the violation of democracy, all states—or at least those states party to the ICCPR, when the obligation only arises under that treaty—are entitled to take countermeasures against the offending state. See the practice mentioned by the Special Rapporteur in its commentary on Article 54, UN International Law Commission, ‘Report on the Work of its 53rd Session,’ UN Doc A/56/10, 137–39 (2001). See also C J Tams, Enforcing Obligations Erga Omnes in International Law (CUP, Cambridge 2005) 220–21.

⁶¹ On this question, see J d'Aspremont ‘Legitimacy of Governments in the Age of Democracy’ (n 5); See also Murphy, S D ‘Democratic legitimacy and the recognition of states and governments’ (1999) 48 ICLQ 545–581.CrossRefGoogle Scholar

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⁶³ F N Aoláin and C Campbell, ‘The Paradox of Transition in Conflicted Societies’ (2005) 27 HRQ 172–213. See also J d'Aspremont, L'Etat non démocratique (n 5).

⁶⁴ See for instance the election of Charles Taylor in Liberia in July 1997, New York Times, (New York 25 July 1997).

⁶⁵ n 25.

⁶⁶ See Article 16–18 of the ILC articles on State responsibility. See also J Crawford, (n 17) 145–148.

⁶⁷ n 54.

⁶⁸ J Crawford and S Olleson, ‘The Continuing Debate on a UN Convention on State Responsibility’ (2005) 54 ICLQ 959–971; see also the special symposium on the articles on State Responsibility in (2002) 13 EJIL 1053–1255 or J Crawford, J Peel, S Olleson, ‘The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading’ (2001) 12 EJIL 963–991.

⁶⁹ For a criticism of an understanding of international law based on values, see d'Aspremont, J, ‘International Law in Asia: the Limits to the Constitutionalist and Liberal Doctrines’ (2008) 13 Asian YB Intl L 89–111Google Scholar or ‘The Foundations of the International Legal Order’ (2007) 12 Finnish YB Intl L (forthcoming).

⁷⁰ See contra Koskenniemi, M, ‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern L Rev 1–30.CrossRefGoogle Scholar

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